Law & Inequality: A Journal of Theory and Practice
Volume 24 | Issue 2
Article 2
2006
Choice, Equal Protection, and Metropolitan
Integration: The Hope of the Minneapolis
Desegregation Settlement
Myron Orfield
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Recommended Citation
Myron Orfield, Choice, Equal Protection, and Metropolitan Integration: The Hope of the Minneapolis Desegregation Settlement, 24 Law &
Ineq. 269 (2006).
Available at: http://scholarship.law.umn.edu/lawineq/vol24/iss2/2
Law & Inequality: A Journal of Theory and Practice is published by the
University of Minnesota Libraries Publishing.
Choice, Equal Protection, and
Metropolitan Integration: The Hope of the
Minneapolis Desegregation Settlement
Myron Orfield*
Introduction
The Minneapolis-St. Paul metropolitan area is one of the
Whitest and most affluent regions in the country.' In the state of
Hubert Humphrey, and many other national civil rights leaders,
central city school districts contain many public schools that are
overwhelmingly poor and enroll virtually no White students.2
These schools are segregated both racially and economically from
their
city
and
suburban
counterparts-some
are
"hypersegregated,"3 with nearly 90% Black students and similarly
4
large concentrations of poverty.
The effects of neighborhood segregation and poverty are
greatly magnified in schools, which are much more segregated
than their neighborhoods. Moreover, while more than two-thirds
of poor White children live in low-poverty neighborhoods, only
* Associate Professor of Law, Fesler-Lampert Chair in Urban and Regional
Planning, University of Minnesota and Nonresident Senior Fellow, the Brookings
Institution.
This paper was presented at the Public Law Workshop at the
University of Minnesota Law School.
I would like to acknowledge Daria
Roithmayr, Brad Karkkainen, James Ryan, john powell, Gary Orfield, Guy
Charles, Jill Hasday, Ruth Okediji, and Jim Chen for their assistance. I would like
to thank Scott Crain, C. Ann Olson, and Nick Wallace for their spectacular
research assistance.
1. See
U.S.
Census
Bureau,
Summary
File
3,
http://factfinder.census.gov/servlet/CTTable?_caller-geoselect&_ts=144858684577
(last visited Sept. 11, 2005). The Minneapolis-St. Paul area is about 86% White,
and slightly more than 5% Black. Id. The median income by household is more
than $54,000-fourth in the nation. Id.
2. See INST. ON RACE AND POVERTY, RESEARCH, EDUCATION AND ADVOCACY,
SELECTED DEMOGRAPHICS, MINNEAPOLIS PUBLIC ELEMENTARY SCHOOLS, 2003-2004
(2004).
3. DOUGLAS MASSEY & NANCY DENTON, AMERICAN APARTHEID 10 (1993)
(coining the term "hypersegregation" to describe intense, multidimensional
segregation).
4. See INST. ON RACE AND POVERTY, supra note 2.
Law and Inequality
[Vol. 24:269
about 25% of poor Black children and less than 33% of poor
Hispanic children live in low-poverty neighborhoods.5 Only 52% of
Black children and 20% of Hispanic children in Minneapolis will
graduate from high school, in significant part because of racial and
social segregation. 6
Those who do graduate or obtain an
equivalency degree will likely have tremendous difficulty finding a
path to college or a well-paying job with benefits in the
overwhelmingly White-dominated higher education system and
economy. If this kind of racial and socioeconomic segregation can
happen in the Twin Cities, it conceivably can happen anywhere.
Fifty years after the United States Supreme Court decreed
segregated schools to be intrinsically wrong and later ordered that
7
desegregation proceed by "meaningful and immediate progress,"
8
separate schooling still exists for Whites and minorities
While
county-wide educational systems throughout the South effectively
and stably desegregated de jure school districts, 9 Northern
districts--contained within fragmented areas with many
districts-were less amenable to stable integration. Minneapolis,
for example, engaged in city-only desegregation. 10 Hemmed in by
many independent suburban districts and the Supreme Court's
decision in Milliken v. Bradley,1 these Northern cities were
ordered to desegregate their schools without suburban
5. PAUL JARGOWSKY, POVERTY AND PLACE 75 (1997).
6. Minn. Dep't of Educ., School Report Card: Minneapolis Public School Dist.:
AYP Graduation, http://education.state.mn.us/ReportCard2005/aypGraduation.do?
SCHOOLNUM=O0O&DISTRICTNUM=0001&DISTRICTTYPE=03 (last visited
Sept. 11, 2005).
7. Green v. County Sch. Bd., 391 U.S. 430, 439 (1968) (ruling that the
"freedom of choice" system of public education established by the school board of
New Kent County, Virginia, after Brown v. Board of Education, 347 U.S. 483
(1954), was still unconstitutional).
8. See, e.g., Richard Thompson Ford, Brown's Ghost, 117 HARV. L. REV. 1305,
1309 (2004) (noting that "green follows White," meaning integrated schools will
ensure that minorities from low-income communities will not be ignored by the
State if they attend the same middle-class schools as do Whites).
9. Gary Orfield and Susan Eaton, DismantlingDesegregation,in DISMANTLING
DESEGREGATION: THE QUIET REVERSAL OF BROWN V. BOARD OFEDUCATION 1, 14-16
(Gary Orfield & Susan Eaton eds., 1996)
[hereinafter DISMANTLING
DESEGREGATION].
10. See Booker v. Special Sch. Dist. No. 1, 351 F. Supp. 799, 801 (D. Minn.
1972); see also MYRON ORFIELD, METROPOLITICS: A REGIONAL AGENDA FOR
COMMUNITY AND STABILITY 15-38 (1997); Myron Orfield, Economic and Racial
Polarizationin Twin Cities Schools, 17 HAMLINE J. PUB. L. & POL'Y 271 (1996); john
powell, Segregation and Educational Inadequacy in Twin Cities Public Schools, 17
HAMLINE J. PUB. L. & POL'Y 337 (1996).
11. 418 U.S. 717 (1974) (ruling that Detroit's plan to desegregate its city schools
did not require the participation of the public schools outside Detroit).
2006]
DESEGREGATION SETTLEMENT
assistance. 12
While the county-wide systems in the South
remained stably integrated for decades, the results in the Twin
Cities were consistent with city-only desegregation plans
throughout the country:
temporary integration eventually
overwhelmed by White flight.13
In Minnesota, "separate and much more than equal funding"
of inner-city schools has been the response to the problem of
regional segregation. 14 Minnesota increased funding to segregated
schools when it was under the threat of a metropolitan
desegregation suit both in the 1970s under the federal equal
protection clause and in the 1990s under the state's. 15 Since 1995,
state funding formulas have spent 15% more on central city
16
schools than on any other group of schools in the Twin Cities.
As in so many other places in the country, the city schools
made an implicit bargain with the state: "we'll keep them here if
you send us money."'17 At the time, it seemed like a good bargain
for Whites, who were afraid of Black students, and for central-city
education administrators who liked the idea of new resources. But
it wasn't a good deal. It was a deal that likely destroyed countless
lives, deeply hurt city and suburban neighborhoods where the
schools became racially identifiable, and ultimately diminished the
quality of life and the economy of the Twin Cities.
This new funding, which has not changed the tragedy and
harm caused by the segregation of the inner-city schools, is
unlikely to increase further. It is unlikely that the legislature will
grant more money to inner-city schools when they are increasingly
failing and when property taxes and enrollment are growing
rapidly in the developing, low-property tax, and politically pivotal
suburbs.18
Racially and economically isolated schools are often attacked
by opportunistic politicians who use the pathologies created by
segregation to fuel White resentment against the segregated
schools.' 9 Segregated schools with high spending and poor test
12. Orfield & Eaton, supra note 9, at 29-30.
13. ORFIELD, supra note 10, at 44-45.
14. See id. at 91.
15. See id. at 45, 91.
16. Id.
17. Id.
18. See generally id.
19. See, e.g., Doug Grow, Was Day Crude? Or Just Stupid?, STAR TRIB.
(Minneapolis), May 22, 2004, at 1B (quoting the Minnesota Senate Minority Leader
Law and Inequality
[Vol. 24:269
scores are often used as an affirmation of conservative views of
government and a powerful wedge issue to divide suburban voters,
many of whom live in low-wealth school districts which directly
compete with the central cities for aid. 20 There has been little or
no effective liberal response to these attacks. But the failure of
segregated schools is not necessarily due to corruption or
mismanagement, although both are more likely to occur in central
cities without politically powerful middle-class families to monitor
school quality and performance. It is because, as decades of
national experience have shown, students are overwhelmingly
disadvantaged by the learning environments of majority poor and
segregated schools.2 1 While racially and economically isolated
schools fail, the few examples of socially integrated schools are
meeting expectations and effectively educating children from
22
diverse racial and social backgrounds.
Urban school advocates and leaders across the political
spectrum throughout the nation have also hailed charter schools
as an answer to failing urban schools. 23
Charter schools,
pioneered in Minnesota as a national model, have failed to yield
better results, have deepened racial segregation, and appear to be
frequently mismanaged and financially unstable.24
who was recently forced to apologize for "repeatedly and angrily sa[ying] that
Minneapolis and St. Paul schools 'suck"').
20. See id. These leaders generally fail to mention the manifold difference
between educating students in schools with 90% or more children coming from poor
homes and educating students in affluent or middle-class suburbs.
21. See, e.g., RICHARD KAHLENBERG, ALL TOGETHER Now: CREATING MIDDLECLASS SCHOOLS THROUGH PUBLIC SCHOOL CHOICE 25 (2001) (discussing effects of
concentrated poverty, parent educational achievement, "oppositional culture," and
influence of peers on educational attainment among students).
22. See Minn. Dep't of Educ., School Report Card: Lake Harriet Upper (121),
http://education.state.mn.us/ReportCard2005/schoolDistrictInfo.do?SCHOOL NUM
=121&DISTRICT NUM=O0O1&DISTRICT_TYPE=03 (last visited Sept. 11, 2005)
(showing demographics and links to Adequate Yearly Progress and Basic Skills
Testing results). As an example, Lake Harriet Upper Campus in Southwest
Minneapolis has 18% minorities, 11% free and reduced lunch enrollment, and the
school is making adequate yearly progress and exceeding testing goals for children
of all races. Id.
23. See,
e.g.,
U.S.
Charter
Schools,
http://www.uscharterschools.org/pub/uscsdocs/o/movement.htm (last visited Sept.
11, 2005). Much of the rhetoric surrounding charter schools is based on upsetting
the notion of what a "public" school is.
24. See ERICA FRANKENBERG & CHUNGMEI LEE, HARVARD UNIV., THE CIVIL
RIGHTS PROJECT, CHARTER SCHOOLS AND RACE: A LOST OPPORTUNITY FOR
INTEGRATED
EDUCATION
4,
7
(2003),
http://www.civilrightsproject.harvard.edu/research/deseg/Charter-schools03.pdf
(noting that 70% of Black students in charter schools are likely to be in intensely
2006]
DESEGREGATION SETTLEMENT
Schools are more than textbooks, facilities, and dedicated
teachers. Schools are also social networks which establish
connections and relationships that are important in college,
careers, and for general access to opportunity. Poor, segregated
schools cannot expose children to these networks, and the larger
institutions associated with opportunity in society are harder for
students from racially and socially segregated high schools to
access, which hinders the ability of Black and Latino children to
lift themselves out of poverty.25 In addition, Whites, who are the
racial group most segregated in their schooling-segregated from
both low-income students and students of color-are injured by
decreased opportunities to interact with diverse groups in an
increasingly diverse country. 26 The trend across the nation is for
increased diversity at all grades, and Whites will soon be in the
27
minority.
Like Minneapolis in the 1960s and 1970s, older suburban
school districts are experiencing rapid racial change, increased
segregation, and its attendant harms. In several of these school
districts, recent attendance boundary changes have concentrated
minorities in racially identifiable schools through a pattern 2of8
conduct which may violate the federal and state constitutions.
Suburban racial change and policies that contribute to White
flight and segregation are hurting these communities by creating
identifiably White schools and non-White schools, thereby
encouraging the spatial separation of Whites and minorities not
only in schools, but also in suburban neighborhoods.2 9
segregated schools as opposed to 34% in standard public schools; also noting that
the uniqueness of charter schools makes it difficult or impossible to evaluate the
quality of education); see also Scott Abernathy, Charter Schools, Parents, and
Public Schools in Minnesota, 34 CURA REP. 1, 6-7 (2004) (discussing positive and
negative consequences associated with charter schools, particularly the siphoning
of the most active parents from traditional public schools).
25. See Joleen Kirschenman & Kathryn Neckerman, "We'd Love to Hire Them,
But...": The Meaning of Race for Employers, in THE URBAN UNDERCLASS 203, 231
(Christopher Jencks & Paul E. Peterson eds., 1991) (documenting discrimination by
employers in Chicago who turned down applicants from low-income neighborhoods
and high schools more frequently).
26. See Ford, supra note 8, at 1311 (quoting the reasoning of Justice O'Connor
in Grutter v. Bollinger, 539 U.S. 306 (2003)).
27. Eric Schmitt, The New Urban Minority, N.Y. TIMES, May 6, 2001, at 4.2
(noting that Whites constitute a minority in the largest 100 cities in the country).
28. See, e.g., Bloomington Public Schools, Middle School Attendance Areas,
http://www.bloomington.k 12.mn.us/departments/superintendent/assistant-supt/im
ages/mapms.jpg (last visited Mar. 5, 2006).
29. Recent evidence shows that real estate agents, in violation of federal law,
Law and Inequality
[Vol. 24:269
More segregation is not inevitable, however.
The legal
response has been largely halted in the federal courts, as they
have essentially "dismantled" desegregation remedies and allowed
school districts to return to segregated schooling. Yet important
federal remedies remain relevant to the setting of attendance
boundaries in newly diverse, older suburbs.
Perhaps more importantly, civil rights plaintiffs' lawyers
have shifted their tactics to state courts. Sheff v. O'Neill, a state
case filed in Connecticut in 1989, is the leading case advocating
desegregation through state constitutional law.30 Local attorneys
and the Minneapolis NAACP filed a similar suit in 1995 to require
the state of Minnesota to desegregate Minneapolis's troubled
schools with neighboring suburban districts. A settlement arose in
2000 that pushed the state towards creating a solution and
provided opportunity for poor children and children of color to
attend middle-income schools. The Choice is Yours Program
("CIY"), created by the settlement, made space for 2,000 lowincome Minneapolis children from poor neighborhoods to attend
31
suburban schools over four years.
Early experiences in the program have been positive and the
legislature, on a bipartisan basis, recently continued CIY after the
settlement expired.3 2 The parents of the CIY children say the
schools are safer and stronger educationally, despite long bus rides
and the ever-present problem of racism by Whites unaccustomed
to Black and Latino students. Moreover, fewer than 15% of
students enrolling in a suburban school through the program
elected to return to the Minneapolis School District ("MSD").33
This Article argues that, in order to combat desegregation in
Minneapolis, CIY should be extended and expanded to operate in
conjunction with a stronger regional approach to affordable
housing.
systematically steer Whites toward White areas in the suburbs and Blacks toward
Black areas of the suburbs. See, e.g., LAWRENCE A. WINANS & CHRISTY L. SNOW,
FAIR HOUSING AUDIT: A COMMUNITY AUDIT TESTING FOR RACIAL BIAS IN RENTAL
HOUSING IN THE CITIES OF BLOOMINGTON, BURNSVILLE, AND ST. CLOUD 12-21
(1997).
30. Sheffv. O'Neill, 678 A-2d 1267 (Conn. 1996).
31. See West Metro
Education
Program,
The Choice
is Yours,
http://www.wmep.net/choice.html (last visited Aug. 10, 2005) (explaining CIY in
detail for parents and children).
32. Allie Shah, School-choice Plan Extended, STAR TRIB. (Minneapolis), Jan. 8,
2004, at 1B (summarizing the achievements of the first two years of the program).
33. ELISABETH A. PALMER, THE CHOICE IS YOURS AFTER TwO YEARS: AN
EVALUATION 18 (2003).
2006]
DESEGREGATION SETTLEMENT
This Article will discuss the barriers to integration that have
been created since Brown v. Board of Education34 and the
relevance that struggles from the 1970s and 1980s have for the
increased segregation in the Twin Cities and around the country
today. The Article details the legal structure that has been
created in Minnesota to address segregation, state equal
protection lawsuits, and desirable outcomes and needed reforms. I
support a slightly different position than some recent
commentators by noting that racial integration is a required
element to improving our schools and cities-economic class
cannot effectively serve as a proxy for the benefit of increased
cross-cultural interaction.
The Article concludes by showing that comprehensive state
regional integration can be achieved if sound, regional strategies
are used to discourage White flight by creating low-poverty, highachieving schools throughout the region. New research from the
Institute on Race and Poverty ("IRP") shows that, far from
encouraging White flight, as city-only desegregation does,
metropolitan-wide school desegregation helps to create stably
integrated schools and residential neighborhoods. These findings
have ramifications for the future administration of CIY and future
discussions on the crisis in United States public schools. With a
strong choice program permitting low-income minority families to
enter middle-class suburban schools and a more targeted lowincome housing program reinforcing integration of those schools,
there is no reason why an area as White and affluent as the Twin
Cities cannot become a fully and stably integrated region.
Parents and students, understanding all the options, do not
choose segregated schooling and its attendant disadvantages-the
overwhelming interest in CIY demonstrates as much. Moreover, it
is ultimately untenable to spend twice the suburban average in
funding on schools of concentrated poverty without achievement
results. In theory and in practice, a transportation voucher and a
seat in a middle-class suburban school cost less and provides more
opportunity, while
contributing
to residential
stability.
Furthermore,
creating
and
maintaining
cross-cultural
relationships is as important as ever in a society that is
increasingly diverse and is only served well through desegregated
schools.
All of these considerations give rise to a moral as well as a
34. 347 U.S. 483 (1954) (finding segregated schooling unconstitutional).
Law and Inequality
[Vol. 24:269
legal obligation for overwhelmingly White and middle-class
schools to allow space for children of all backgrounds and to share
resources and experience to help educate the state's poorest
children. More funding is not enough to meet that obligation.
Fifty years after the initial decree in Brown, civil rights leaders
have proved themselves prophetic in arguing that segregated
schools are not equal schools, even if you spend twice as much as
affluent White schools.
I. History and Demographic Change of Minnesota School
Segregation: From Minneapolis to the Inner Suburbs
A. How SegregationHappens
Segregation and its socioeconomic consequences were carved
into the nation's landscape and psyche by the century of
discrimination that followed slavery. A century after the Civil
War, the Kerner Commission reported to the nation in 1968 on the
conditions igniting hundreds of urban riots.35 It said of the racial
ghetto: "White institutions created it, White institutions maintain
it, and White society condones it."36 School segregation arises out
of institutions that affect both schools and housing because quality
education is a significant factor influencing parents' choice of
neighborhood.
Even though overt racial discrimination became illegal during
the second half of the 1900s, housing, zoning, and school policies
persist in protecting segregation. Public officials recognize that
these policies, abetted by local government fragmentation, can be
used to shield private decisions that sometimes include race-based
motivations. Thus, acceptance of the policies and practices that
maintain segregation as "natural," and the ongoing dynamics they
perpetuate, overlooks both discrimination's history and the chance
to "walk the talk" of equal access to opportunity for all races and
ethnicities.
Pervasive housing discrimination by private actors helped to
7
create and currently maintains poor, minority neighborhoods?
Until at least the end of World War II, physical violence, racial
zoning, and discriminatory real estate practices kept Blacks
35. UNITED STATES KERNER COMM'N, REPORT OF THE NATIONAL ADVISORY
COMMISSION ON CIVIL DISORDERS (1968).
36. Id. at 2.
37. MASSEY & DENTON, supra note 3, at 12-14.
2006]
DESEGREGATION SETTLEMENT
277
tightly confined in ghetto areas and out of White areas.3 8 In many
cities, White property owners attached restrictive covenants to
deeds that forbade Blacks from buying homes in their
neighborhoods. 39 Real estate agencies engaged in a variety of
discriminatory practices, including racial steering of Blacks and
Whites away from each other and blockbusting, which involves
selling a few homes in a White neighborhood to Black tenants,
buying neighboring homes at lower prices from panicked White
homeowners, and then selling the homes to middle-income Blacks
40
at a premium.
To this day, Blacks and Latinos at all income levels are
discriminated against by real estate agents, who show them only a
small subset of the market and steer Whites away from
communities with people of color. 41
Mortgage lenders also
systematically lend less mortgage money to Blacks and Latinos
compared to Whites of comparable income and background.4 2
These patterns of housing discrimination and resegregation do not
stop at central city borders; they also affect large parts of
suburbia. A recent study of metropolitan Boston showed that
nearly half of Black homebuyers were concentrated in only 7 of
43
126 communities.
38.
39.
1940s.
40.
Id. at 36-37.
Id. Racially restrictive covenants were declared unconstitutional in the
See Shelley v. Kramer, 334 U.S. 1 (1948).
See MASSEY & DENTON, supra note 3, at 38.
41. See MARGERY AUSTIN TURNER ET AL., URBAN INST., DISCRIMINATION IN
METROPOLITAN HOUSING MARKETS 3-1 to 3-19, 6-1 to 6-13 (2002), available at
http://www.huduser.org/Publications/pdf/Phasel-Report.pdf
(summarizing
discrimination data from 2000); JOHN YINGER, CLOSED DOORS, OPPORTUNITIES
LOST 51-61 (1995) (examining racial and ethnic steering phenomena); see generally
George C. Galster, Racial Steering in Urban Housing Markets: A Review of Audit
Evidence, 18 REV. BLACK POL. ECON 105 (1990) (same).
42. See John Yinger, Cash in Your Face: The Cost of Racial and Ethnic
Discrimination in Housing, 42 J. URB. ECON. 339, 340 (1997) (providing research
based on Home Mortgage Disclosure Act ("HMDA') data finding that
discrimination in housing and financing markets costs Blacks and Hispanics, on
average, more than $3,000 whether or not they actually encounter discrimination);
YINGER, supra note 41, at 69-70 (1995) (analyzing HMDA data and finding stark
racial differences in lending policy, even when controlling for differences in lenders
and individual economic characteristics of the borrower).
43. Guy STUART, HARVARD UNIV. THE CIVIL RIGHTS PROJECT, SEGREGATION IN
THE BOSTON METROPOLITAN AREA AT THE END OF THE 20TH CENTURY (2000),
available at
http://www.civilrightsproject.harvard.edu/research/metro/housing
boston.pdf (referring to evidence presented in the report's unpaginated executive
summary). Additionally, White suburbanites are not shown integrated markets.
TURNER ET. AL, supra note 41, at 6-1.
Law and Inequality
[Vol. 24:269
The resegregation of urban neighborhoods is a complex process
that contributes substantially to the isolation of poor minorities.
White demand for housing declines when Black or Latino
residents move to new neighborhoods that are integrated or very
White. 44 This occurs first in households with children and later for
the broader middle-class.4 5 In a housing market where American
households change housing locations on average every six years,
Black and Latino members of the middle-class are not, by6
themselves, capable of sustaining a middle-class housing market
When White middle-class families withdraw, the reality of supply
and demand will lower prices.47 When the price of housing falls,
low-income minorities move into the housing left behind. 48
Businesses and jobs, seeing this disinvestment by the broader
middle-class, soon follow, taking with them a portion of the tax
base .49
Racial change in schools is often a precursor to change in the
housing market. In most cases, when schools become more Black
and Latino, they become poorer; within a short span of time, the
Once the minority share in a
neighborhood follows suit.5 0
community school increases to a threshold level (perhaps 10% to
20%), racial transition accelerates until minority percentages
reach very high levels (greater than 80%).51
A study by the IRP found striking evidence of resegregation in
some of the largest metropolitan areas in the United States. 2 An
44. See MASSEY & DENTON, supra note 3, at 96.
45. MYRON ORFIELD, AMERICAN METROPOLITICS: THE NEW SUBURBAN REALITY
11 (2002).
46. See id. at 12-13.
47. See id. at 11.
48. See id.
49. The pattern of resegregation, flight, and tipping is complex. See generally
George Galster et al., Identifying Neighborhood Thresholds: An Empirical
Exploration, 11 HOUSING POLY DEBATE 701 (2000); Roberto Quericia & George
Galster, Threshold Effects and Neighborhood Change, 20 J. PLAN. EDUC. & RES.
146 (2000); George Galster et al., The Fortune of Poor Neighborhoods, 39 URB. AFF.
REV. 205 (2003). Some have argued that the "invasion-succession" model may be
less applicable in contexts involving Hispanic and Asian residents. See DAVID
FASENFEST ET AL., LIVING TOGETHER: A NEW LOOK AT RACIAL AND ETHNIC
15 (2004), available at
IN METROPOLITAN NEIGHBORHOODS
INTEGRATION
http://www.brookings.edu/urban/pubs/20040428_fasenfest.pdf.
50. ORFIELD, supra note 45, at 10.
51. Id. at 9-15. Change occurs fastest at levels of 20% to 50% and proceeds in
most cases until schools are highly segregated. Id.
52. Myron Orfield & Tom Luce, Minority Suburbanization and Racial Change
(May 5, 2005) (unpublished paper, on file with the author), available at
http://www.irpumn.org/uls/resources/projectsMinoritySubn.050605wMAPS.pdf.
2006]
DESEGREGATION SETTLEMENT
analysis of fifteen large metro regions between 1980 and 2000
found that a majority of Blacks and Latinos now live in suburban
cities. 53 IRP found that many neighborhoods which at one point in
time appeared to be integrated were actually in a period of racial
transition.5 4 Many of these neighborhoods experienced racial
transition only if the non-White population exceeded 20% to 30%. 5
Census data also shows that integrated census tracts which
had a Black population percentage in the mid-thirties in 1980
were more likely to make the transition to predominantly Black
during the next twenty years than they were to remain
integrated.5 6 Resegregation is not inevitable, but integrated areas
with a majority of Black residents tend to become more Black over
time. 57 Communities that have practiced "managed integration"
with a series of pro-integrative financial incentives, careful
oversight of real estate practices, and use of marketing strategies
geared to maintaining the housing demand of Whites when
evidence of resegregation appeared have been frequently
successful in maintaining social and economic integration for
58
generations.
Despite evidence that discrimination plays a large role in
residential segregation, 59 conventional wisdom holds that patterns
of segregation are simply the result of individual preferences. The
Supreme Court's opinion in Freeman v. Pitts6 exemplified this
view by finding that a pattern of segregation was the result of
private choices, approvingly citing a lower court's reliance on a
53.
54.
55.
56.
57.
Id. at 1.
See id.
Id. at 8.
Id. at 9.
Lynette Rawlings
et al., Race and Residence: Prospects for Stable
Neighborhood Integration, 3 NEIGHBORHOOD CHANGE IN URB. AM. 1, 4-5, 8 (2004),
http://www.urban.org/UploadedPDF/310985_NCUA3.pdf.
58. ORFIELD, supra note 45, at 125-26.
59. See, e.g., TURNER ET AL., supra note 41, at 3-1 to 3-19, 6-1 to 6-13 ("In 2000,
African American renters were significantly more likely to be denied information
about available housing units than comparable white renters."); see also Yinger,
supra note 42, at 340 (finding that discrimination in housing and financing
markets costs Blacks and Hispanics, on average, more than $3,000 whether or not
they actually encounter discrimination); YINGER, supra note 41 (finding stark racial
differences in lending policy, even after controlling for differences in lender policy
and individual economic characteristics of the borrower).
60. 503 U.S. 467 (1992) (holding that a district court is permitted to withdraw
judicial supervision with respect to discreet categories in which the school district
has achieved compliance with a court-ordered desegregation plan).
Law and Inequality
[Vol. 24:269
study.61 The Court implied that the preferences of Black and
Latinos for 50/50 integrated neighborhoods and Whites' being
uncomfortable with more than a 10% Black and Latino population
make segregation inevitable. 62 Courts and legal commentators
have cited this finding as fact, and it has cast a huge shadow over
the law and the landscape of reform. But the study's authors have
recently written that the Court's analysis was inadequate and that
significant and increasing evidence demonstrates the ability of
Blacks and Whites to live together on a long-term stable basis,
particularly when a conscious integration plan is in place.6 3
The forces that work to create resegregation, as described
above, are certainly complex, but there is little question that
discrimination plays at least some role in maintaining residential
segregation. Because of the widespread use of neighborhood
schooling, residential segregation is then translated into school
segregation. 64 The next section describes how the segregation of
minorities by race and income devastates their life prospects.
B. The Consequences of Segregation
Segregated schools harm children. They harm schools,
communities, and entire metropolitan regions. Segregated schools
mirror a region's severely segregated residential patterns,
concentrate poverty, magnify its harms, and isolate those most in
need of opportunity from social structures, jobs, and education.
1. Segregated Schools Hurt Kids
More than three-quarters of the difference in academic
achievement among students is explained by the socioeconomic
status of their peers, as a recent comprehensive study of hundreds
of the nation's secondary schools confirmed.6 5 Not only do racially
61. Id. at 495.
62. See id.
63. Reynolds Farley et al., The Residential Preferences of Blacks and Whites: A
Four-Metropolis Analysis, 8 Hous. POL'Y DEBATE 763, 794 (1997). The district
court relied on an earlier study of Detroit by Reynolds Farley. Id. at 771-73 (noting
that the court cited Reynolds Farley et al., Chocolate City, Vanilla Suburbs: Will
the Trend Towards Racially SeparateCommunities Continue?, 7 SOC. SCI. RES. 319
(1978)).
64. KAHLENBERG, supra note 21, at 22.
65. Russell W. Rumberger & Gregory J. Palardy, Does Resegregation Matter?
The Impact of Social Composition on Academic Achievement in Southern High
Schools, in SCHOOL RESEGREGATION: MUST THE SOUTH TURN BACK? 127, 135-37
(John Charles Boger & Gary Orfield eds., 2005) (national, longitudinal study of
eighth through twelfth graders).
2006]
DESEGREGATION SETTLEMENT
and economically segregated schools hurt children, they harm
disproportionate numbers of minority children simply because
they are minorities.
a. ConcentratedPoverty Hurts Kids
"The percentage of poor children in a school is an extremely
strong predictor of inequality in educational outcomes.'66 As "fifty
years of sociological data have made clear: being born into a poor
family places students at risk, but to be assigned then to a school
with a high concentration of poverty poses a second, independent
disadvantage that poor children attending middle-class schools do
not face." 67 The harms of economically segregated schools fall
disproportionately on non-White children because residential
segregation permits most poor White children nevertheless to live
and be educated in middle-class settings.
Because of segregation by race and poverty, poor Latino and
Black children are 2.3 times more likely than poor White students
to attend schools of concentrated poverty, cut off from meaningful
exposure to middle-class culture. 68 In contrast, because they are
White, four out of five poor White children attend schools with
69
meaningful middle-class enrollments.
Although poor students have, on average, lower math test
scores than do non-poor students, all children do better in middleclass schools, and all children do worse in schools of concentrated
70
poverty.
Among the harms of attending poor schools is the risk of being
poor as an adult.
When researchers control for individual
achievement and family background, they still find that "attending
a school with high concentrations of poverty increases the chances
of adult poverty by a factor of between three and four compared
with attending a low-poverty school."71
Other harms of
66. Gary Orfield, Metropolitan School Desegregation: Impacts on Metropolitan
Society, in IN PURSUIT OF A DREAM DEFERRED: LINKING HOUSING AND EDUCATION
POLICY 121, 141 (john powell et al. eds., 2001) (citing Gary Orfield & Sean Reardon,
Race, Poverty, and Inequality, in NEW OPPORTUNITIES: CIVIL RIGHTS AT A
CROSSROADS (Citizens Comm'n on Civil Rights ed., 1993)).
67. KAHLENBERG, supra note 21, at 25.
68. Rumberger & Palardy, supra note 65, at 127-28. In addition to the racially
disproportionate burden on non-White children of attending poor schools, the rate
of individual poverty is 2.5 times higher among non-White children. Id.
69. Id. (reporting that 81% of White children attend middle-class schools).
70. Id. at 128.
71. KAHLENBERG, supra note 21, at 31.
Law and Inequality
(Vol. 24:269
economically segregated schools (and neighborhoods) include the
harms associated with racially segregated schools, discussed
below, and with dropping out of school. 72 On average, high school
"dropouts are far more likely to be unemployed, in prison, and
73
living in poverty."
Schools of concentrated poverty offer fewer resources, weaker
educational preparation, and "substantially lower overall
achievement levels. ' 74 Compounded by racial isolation, segregated
schools prevent access to the social contacts and cultural
familiarity "necessary for career and educational advancement,"
especially for Black children.7 5 In short, students in segregated
schools "are 'deprived of the most effective educational resources
contained in the schools: those brought by other children as the
76
result of their home environment."'
b. Racial Segregation HurtsKids
While the harms of segregated schools stem largely from the
challenges associated with concentrated poverty, racially
segregated schools additionally isolate children who must function
in a multicultural society from ongoing interactions that teach
those competencies. Segregation deprives minority children of
middle-class cultures that model and support hopeful futures and
offer social networks to information and opportunity.
Racially segregated schools tend to be overcrowded, staffed by
larger shares of uncertified teachers, and have low expectations
and limited facilities. 7 7 In addition, non-White segregated schools
"often transmit lower expectations to minority students and offer a
narrower range of educational and job-related options."78 Thus,
72. See generally GARY ORFIELD et al., HARVARD UNIV., THE CIVIL RIGHTS
PROJECT, LOSING OUR FUTURE: HOW MINORITY YOUTH ARE BEING LEFT BEHIND BY
3
(2004),
available
at
THE
GRADUATION
RATE
CRISIS
www.civilrightsproject.harvard.edulresearch/dropouts/LosingOurFuture.pdf.
73. Id. at 1.
74. Jacinta Ma & Michael Kurlander, The Futureof Race-ConsciousPolicies in
K-12 Public Schools, in SCHOOL RESEGREGATION: MUST THE SOUTH TURN BACK?,
supra note 65, at 239, 248.
75. Id.
76. KAHLENBERG, supra note 21, at 24 (quoting James Coleman's testimony
before the Senate Select Committee on Equal Educational Opportunity).
77. See U.S. DEP'T OF EDUC., GREAT EXPECTATIONS: REFORMING URBAN HIGH
SCHOOLS-AN EDUCATION FORUM WITH URBAN EDUCATORS AND LEADERS (2000).
78. Brief of the Civil Rights Project at Harvard Univ. as Amicus Curiae in
support of Defendants-Appellees and Affirmance of the Judgment of the District
Court at 12, Comfort v. Lynn Sch. Committee, 418 F.3d 1 (1st Cir. 2005) (No. 03-
2006]
DESEGREGATION SETTLEMENT
studies have found, for example, that Black students from racially
segregated schools obtain lower paying and more racially isolated
jobs than Whites. 7 9 Racially segregated schools too often do not
encourage students "to develop the levels of self-esteem or the
styles of presentation which employers perceive as evidence of
80
capacity or ability."
Segregated schools also deprive non-White students of
exposure to a sufficiently strong success culture to support them in
breaking free from the oppositional culture of many peers.
Children, particularly impoverished Black students coming from
deeply disadvantaged families, too often are surrounded by
"oppositional" cultures
at
home,
in
their
segregated
neighborhoods, and, tragically, at school, if they attend segregated
schools. These cultures deride and punish individuals seeking to
succeed in the dominant culture.8 1 The intense pressure not to
give in to what is seen as a White educational and social system
can weigh heavily on Black students who wish to succeed at
82
school.
This oppositional culture perpetuates segregation and its
harms. It stems from a set of beliefs regarding victimization from
discrimination
that is
understood
as permanent
and
institutionalized.8 3 Tragically, oppositional culture among Black
students discourages academic accomplishment "regardless of
income level or class."8 4 This can perpetuate negative social
networks.8 5 In contrast, integration is valuable in offering "social
networks and interpersonal skills that in turn may provide access,
'
information, contact, and sponsorship. "86
Indeed, even disadvantaged students who were committed to
succeeding found they "lacked the knowledge or access necessary
2415), cert. denied, 126 S. Ct. 798 (2005) [hereinafter Lynn BrieI.
79. Id. at 14 (citing numerous studies).
80. WILLIAM JULIUS WILSON, THE TRULY DISADVANTAGED 103 (1987).
81. Case studies vividly relate this intense peer pressure, and its effects. See,
e.g., ALEX KOTLOWITZ, THERE ARE No CHILDREN HERE xi (1991); RON SUSKIND, A
HOPE IN THE UNSEEN 365 (1999).
82. See, e.g., Signithia Fordham & John Ogbu, Black Students' School Success:
Coping with the Burden of "Acting White", 18 URB. REV. 176, 177 (1986).
83. Teresa Wasonga & Dana Christman, Perceptions and Construction of
Meanings of Urban High School Experiences Among African American University
Students: A Focus Group Approach, 35 EDUC. & URB. SOC. 181, 181 (2003).
84. Id. at 182.
85. Id.
86. Id. at 183.
Law and Inequality
[Vol. 24:269
to implement a plan of action."87 The racially integrated school
environment offers these ingredients for success, and provides
"alternative role models and opportunities as well as affection and
vahdation."88
2. Segregation Hurts Twin Cities Kids and Schools
The Twin Cities region is severely segregated by class and
race, and districts such as Minneapolis are dangerously segregated
as a result. The acutely segregated schools in Minneapolis are
crushed by poverty enrollments of 80% to nearly 100%. That gives
students not opportunity, but a culture of intergenerational
poverty and its attendant challenges.
a. Twin Cities Schools are Severely Segregated
The Twin Cities metro region has one of the nation's lowest
poverty rates, 6.7% in 2000.89
While poverty is borne
disproportionately by the central cities, at 16.4% versus the
suburbs' 4.0%,90 school segregation is entirely out of proportion
even to that disparity: two-thirds of students in Minneapolis
Public Schools receive free and reduced-price lunches,91 and many
92
Minneapolis schools enroll essentially no middle-class students.
By 2003, 60% of reporting Minneapolis schools were terribly
93
Sixtysegregated, with enrollments 81% to 100% non-White.
eight percent of Minneapolis students presently are on free or
reduced price lunch.94 This concentration of poverty is extreme in
87. Id. at 198.
88. Id.
89. ALAN BERUBE & WILLIAM H. FREY, A DECADE OF MIXED BLESSINGS: URBAN
AND SUBURBAN
POVERTY
IN
CENSUS
2000
15
(2002),
available at
http://www.brookings.edu/es/urban/publications/berubefreypoverty.pdf.
90. Id.
91. See INST. ON RACE & POVERTY, supra note 2. A student is eligible for free
lunch if her household has an income at or below 130% of federal poverty
guidelines. During the 2001-2002 school year, a student from a four-person
household would be eligible if household income did not exceed $22,945. Food and
Nutrition Service Child Nutrition Programs-Income Eligibility Guidelines, 66
Fed.
Reg.
15827-29
(Mar.
21,
2001),
available
at
www.fns.usda.gov/cnd/governance/notices/iegs/IEGsO1-02.pdf.
92. See INST. ON RACE & POVERTY, supra note 2.
93. U.S. DEP'T OF EDUC., NAT'L CTR. FOR EDUC. STATISTICS, CHARACTERISTICS
OF THE 100 LARGEST PUBLIC ELEMENTARY AND SECONDARY SCHOOL DISTRICTS IN
THE
UNITED
STATES:
2002-03
28
(2005),
available
at
http://nces.ed.gov/pubs2005/2005312.pdf.
94. Minn. Dep't of Educ., School Report Card: Minneapolis Public School Dist.,
Student Demographics, http://education.state.mn.us/ReportCard2005/schoolDistrict
2006]
DESEGREGATION SETTLEMENT
the national context and is especially so within the Twin Cities
regional context.
Minneapolis makes the list (although barely) of the largest one
hundred school districts in the nation, which includes districts in
the nation's most troubled cities. Economic segregation in
Minneapolis schools exceeds that of districts like Detroit, Miami,
and Mobile, Alabama, and approaches that of districts like
Baltimore. 95 Looking within the Twin Cities metro region reveals
more vividly not only the extent of economic segregation, but the
opportunities for reversing it. Minneapolis's poverty average is
forty percentage points higher than Bloomington's and sixty-one
96
percentage points higher than Edina's.
When poverty burdens become too large in a school,
enrollments can change rapidly until concentrated poverty is
extreme.
This concentration puts neighborhoods at risk of
changing quickly
as the middle-class goes elsewhere in search of
"good" schools. 97 School segregation and residential segregation
thus are inextricably intertwined.
Thus, if concentrated race and poverty create a poor learning
environment, one solution is the deconcentration of race and
poverty. Over the years, integration of classrooms by race and
class has proven to be one of the most effective methods for raising
student achievement. The next section illustrates some of the
gains students have made by attending integrated schools.
C. What are the Benefits of Integration?
Students benefit from economically and racially integrated
schools; so do neighborhoods and metro regions. Anything short of
integration does not compensate for what is missing in segregated
schools: a large share of students who bring to school the high
expectations, aspirations, and access to opportunity networks
associated with living in middle-class families.
Info.do?SCHOOLNUM=OOO&DISTRICTNUM=OOO1&DISTRICTTYPE=03
(last
visited Feb. 11, 2006).
95. See U.S. DEP'T OF EDUC., supra note 93, at 29-30.
96. Data for each district can be accessed through the school report card index
at the Minnesota Department of Education's website. Minn. Dep't of Educ., School
Report Card (2005), http://education.state.mn.us/ReportCard2005/index.do (last
visited Feb. 11, 2006).
97. ORFIELD, supra note 10, at 39.
286
Law and Inequality
[Vol. 24:269
1. Integrated Schools Help Students
Since James Coleman's seminal 1966 report, empirical
research has continued to show "that a student's achievement is
8
highly related to characteristics of other students in the school.'9
As the Supreme Court confirmed in 2003, "numerous studies show
that student body diversity promotes learning outcomes, and
'better prepares students for an increasingly diverse workforce and
society, and better prepares them as professionals."'9 9 The reasons
for this range from the effects of a student's peers on aspirations
and attitudes toward education, to the attention policy-makers
give to middle- and upper-class parents and schools.
a. Social and Opportunity Benefits
For both White and Black students, interracial contact in
primary and secondary school makes it more likely that they will
live, work, and attend college in more integrated settings. 100 For
Black students, interracial contact helps reverse perpetual
segregation, in part because desegregated schools permit "access
to high-status institutions and the powerful social networks within
them."10 1
For Black and, especially, White students, integrated
classrooms improve the stability of interracial friendships, 10 2 and
make adult interracial friendships more likely.10 3 Desegregated
schools decrease racial prejudice among students and increase
comfort around people with different backgrounds.1 04
These
outcomes flow from the interactions between the races that,
98. Rumberger & Palardy, supra note 65, at 128.
99. Grutter v. Bollinger, 539 U.S. 306, 332 (2003) (quoting Brief for American
Educational Research Association et al. as Amici Curiae Supporting Respondents
at 3, Grutter, 539 U.S. 306 (2003) (No. 02-241)).
100. See generally Amy Stuart Wells & Robert L. Crain, Perpetuation Theory
and the Long-Term Effects of School Desegregation, 64 REV. ED. RES. 531 (1994)
(reviewing twenty-one research studies).
101. Id. at 531.
102. Lynn Brief, supra note 78, at 19 (citing Maureen Hallinan & Richard
Williams, The Stability of Students' InterracialFriendships,52 AM. SOC. REV. 653,
661-63 (1987)).
103. KAHLENBERG, supra note 21, at 44 (citing Milliken v. Bradley, 418 U.S. 717,
783 (1974) (Marshall, J., dissenting)).
104. See Amy Stuart Wells et al., How Desegregation Changed Us: The Effects of
Racially Mixed Schools on Students and Society (Mar. 2004), in IN SEARCH OF
BROWN 16 (forthcoming), http://cms.tc.columbia.edu/i/a/782_ASWells041504.pdf
(discussing reduced stereotyping and lessened anxiety towards members of other
races of students who attended integrated schools).
20061
DESEGREGATION SETTLEMENT
consistent with the widely accepted 05 intergroup contact theory,
enhance understanding and empathy, and reduce stereotyping.
Integrated schools are important settings for intergroup
contact because students in that setting are to be accorded equal
status; there are authorities to facilitate the contact; students are
engaged in common activities and goals; and personal contacts
displace stereotyping. 10 6 A similar process can occur when parents
from diverse backgrounds work together on behalf of their
children's schools. These are important aspects of promoting
democratic values and bringing members of society together.
The most recent research confirms that both White and Black
children who attend desegregated schools are 'less likely to
express negative views about members of the other race,"' and
Black graduates "are 'less likely than graduates of segregated
07
schools to believe that antiblack discrimination is wide-spread.""
In addition, many studies had already confirmed that these
students were "more likely to attend integrated colleges, live in
integrated neighborhoods as adults, and send their children to
integrated schools."'108
b. Academic Attainment and Achievement
Without reducing the academic results for middle-class and
White children, 10 9 integrated schools improve outcomes for poor
children and non-White children. Among the important reasons
for improved outcomes is that "ambition is contagious:" the drive
to achieve is greatly fueled when disadvantaged children attend
school with middle-class students." 0
Attainment. Black students who attend racially integrated"'
and economically integrated" 2 schools complete more years of
105. Lynn Brief, supra note 78, at 9; see also Christopher Ellison & Daniel A.
Powers, The Contact Hypothesis and Racial Attitudes Among Black Americans, 75
Soc. SCI. Q. 385, 385 (1994); Lee Sigelman & Susan Welch, The Contact Hypothesis
Revisited: Black-White Interaction and Positive Racial Attitudes, 71 Soc. FORCES
781, 781 (1993).
106. Lynn Brief, supra note 78, at 8-9.
107. KAHLENBERG, supra note 21, at 45 (quoting Nancy A. Denton, The
Persistence of Segregation: Links Between Residential Segregation and School
Segregation,80 MINN. L. REV. 822, 822-23 (1996)).
108. Id. at 44.
109. Id. at 44-45 (citing Denton, supra note 107, at 822-23).
110. See, e.g., KAHLENBERG, supra note 21, at 51-58.
111. See generally Michael A. Boozer et al., Race and School Quality Since
Brown v. Board of Education, 1992 Brookings Papers Econ. Activity
(Microeconomics) 269, 301-06.
Law and Inequality
[Vol. 24:269
schooling than those who attend segregated schools. This is true
for post-secondary educational attainment as well.
College
attendance rates are higher among Black students attending
racially integrated schools, and especially for Blacks in Northern
states, than for students attending segregated schools." 3 For
example, research on desegregation achieved by school choice in
St. Louis found that attending a racially integrated school
correlated with twice the rate of college enrollment compared with
those among the 12,000 students studied who attended segregated
schools.114
Achievement. "[M]inority students who attend more racially
integrated schools show increased academic achievement and
progress, which are typically measured by scores on achievement
tests."" 5 For Black students, the achievement gains are especially
consistent when their desegregated school experience begins in the
primary grades. 116 Test scores for Latino students also are higher
on average when they attend desegregated schools. 1 7 In addition,
studies consistently find achievement gains for students attending
economically diverse schools, as contrasted with those attending
schools of concentrated poverty.118
112. See, e.g., Stephen Schellenberg, Concentrationof Poverty and the Ongoing
Need for Title I, in HARD WORK FOR GOOD SCHOOLS: FACTS NOT FADS IN TITLE I
REFORM 130, 137 (Gary Orfield & Elizabeth DeBray eds., 1999).
113. Robert Crain & Rita Mahard, School Racial Composition and Black College
Attendance and Achievement Test Performance, 51 SOC. EDUC. 81, 81 (1978); see
also Boozer et al., supra note 111, at 301-06.
114. Goodwin Liu & William Taylor, School Choice to Achieve Desegregation, 8
(Aug. 8, 2003) (unpublished draft, on file with author) (citing Boozer et al., supra
note 111, at 269-338).
115. Lynn Brief, supra note 78, at 10. Social science research surveys reviewing
four decades of research confirm the proposition. See Janet Ward Schofield,
Maximizing the Benefits of Student Diversity: Lessons from School Desegregation
Research, in DIVERSITY CHALLENGED: EVIDENCE ON THE IMPACT OF AFFIRMATIVE
ACTION 99 (Gary Orfield & Michael Kurlander eds., 2001); Janet Ward Schofield,
Review of Research on School Desegregation'sImpact on Elementary and Secondary
School Students, in HANDBOOK OF RESEARCH ON MULTICULTURAL EDUCATION 597
(James Banks & Cherry McGee Banks eds., 1995); Robert Crain & Rita Mahard,
The Effect of Research Methodology on DesegregationAchievement Studies: A MetaAnalysis, 88 AM. J. SOC. 839 (1983); Robert Crain, School Integration and the
Academic Achievement of Negroes, 44 SOC. EDUC. 1 (1971).
116. Crain & Mahard, supra note 115, at 839.
117. Schofield, Review of Research,supra note 115, at 597.
118. See KAHLENBERG, supranote 21, at 26-28 (citing numerous studies).
20061
DESEGREGATION SETTLEMENT
289
c. Aspirations and OccupationalAttainment
By attending desegregated middle-class schools, poor and nonWhite students obtain equal access to cultures of high educational
and occupational expectations often taken for granted by the
middle and upper classes. Desegregated middle-class schools also
permit access to the social networks associated with opportunity.
The schools with the ingredients for pursuing "the American
dream" are those where most students come from homes providing
these experiences and connections-homes that are middleclass. 119
As the Supreme Court has found, the benefits of diversity "are
not theoretical but real, as major American businesses have made
clear that the skills needed in today's increasingly global
marketplace can only be developed through exposure to widely
diverse people, cultures, ideas, and viewpoints."1 20 For Black
students, examples of the occupational benefits of attending nonsegregated schools include higher occupational aspirations and
access to professions from which minorities have historically been
121
excluded.
In addition, both White and Black students tend to have
higher educational aspirations if they have cross-race friendships,
as contrasted with students who had only same-race
friendships. 122 Finally, as to the overall benefits of middle-class
schools, they "will raise the achievement and improve the life
chances of the poor without reducing the achievement of the
middle class . . . further[ing] the secondary goal of promoting a
123
vibrant democracy and unity amid diversity."
D. The Failureof City-only IntegrationPlans Compared to
the Success of Metropolitan Plans
Analysis of neighborhood demographic data shows that
during the period from 1980 to 2000, metropolitan areas that
employed busing on large geographic scales (county or region-level
119. Lynn Brief, supra note 78, at 12 (citing Marvin Dawkins & Jomills
Braddock, The Continuing Significance of Desegregation: School Racial
Composition and African American Inclusion in American Society, 63 J. NEGRO
EDUC. 394 (1994); Schofield, Review of Research, supra note 115, at 597).
120. Grutter v. Bollinger, 539 U.S. 306, 307 (2003).
121. Schofield, Maximizing the Benefits, supra note 115, at 100.
122. Maureen Hallinan & Richard Williams, Students' Characteristicsand the
Peer Influence Process,63 Soc. EDUC. 122, 122 (1990).
123. KAHLENBERG, supra note 21, at 25.
Law and Inequality
[Vol. 24:269
programs) showed better or more stably integratedhousing market
outcomes than areas that did not have busing.124 Metropolitan
areas with large-scale busing showed larger increases in the
number of residents living in integrated settings than non-busing
metros, and integrated neighborhoods were less likely to become
segregated in busing metros. Both metropolitan areas with metro
busing and those without showed similar patterns during the
twenty year period: the percentages of Whites and Blacks living in
integrated settings 125 increased while the percentages of Hispanics
in integrated settings declined. However, the integrative trends
were significantly stronger in the metropolitan areas with busing.
In those places, the percentage of the total population living in
integrated settings increased by seventeen points, from 25% to
42%.
In the other eighty-five metropolitan areas, the total
percentage increased only nine points, from 26% to 35%.126
IRP's finding with respect to the success of metropolitan
desegregation in stemming White flight affirms research from the
1980s about the power of metro-wide integration. Diana Pearce
noted that school desegregation-if it is metropolitan in naturecan have an unexpected effect: integration of living patterns and
the prevention of White flight or "disenrollment.' 127
These
findings were based on the wave of integration that occurred
subsequent to Brown and continued court oversight of school
integration. Other researchers, as a corollary, have studied a
similar time period to note that metro-wide school desegregation is
also the
most effective
method for increasing
Black
achievement. 28
While their findings indicated that all
124. See Orfield & Luce, supra note 52, at 1. The information in the following
section is derived from the statistics reported in this paper.
125. The definitions for the neighborhood types are the following:
Predominately White-tracts where both the Black and Hispanic shares of the
population are less than 10%; Predominately Black-Black share greater than 50%
and Hispanic share less than 10%; Predominately Hispanic-Hispanic share
greater than 50% and Black share less than 10%; Black and Hispanic Black share
greater than 10%, Hispanic share greater than 10% and White share less than
40%; White/Black Integrated-Black share greater than 10% and less than 50%,
Hispanic share less than 10%; White/Hispanic Integrated-Hispanic share greater
than 10% and less than 50%, Black share less than 10%; W/B/H Integrated-Black
share greater than 10%, Hispanic share greater than 10% and White share greater
than 40%. Black and White shares are for non-Hispanic Black and non-Hispanic
White population. Id. at 4.
126. Id. at 7-10.
127. DIANA PEARCE, BREAKING DOWN BARRIERS: NEW EVIDENCE ON THE IMPACT
OF METROPOLITAN SCHOOL DESEGREGATION OF-HOUSING PATTERNS 3-4 (1980).
128. ROBERT CRAIN & RITA MAHARD, DESEGREGATION PLANS THAT RAISE BLACK
DESEGREGATION SETTLEMENT
2006]
desegregation
plans increased
achievement,
metropolitan
desegregation had the greatest effect on the achievement of Black
students. 129 Moreover, for children who desegregated at earlier
ages, starting with kindergarten, the effect on their achievement
130
increased dramatically.
These studies prove that desegregation and an integrated
learning environment can be powerful forces in raising
achievement at all levels. In addition, these studies indicate that
metropolitan
desegregation
is
effective
in
stabilizing
neighborhoods and in reducing the education gap. An expanded
CIY program, combined with targeted low-income housing
programs, can conceivably reduce and eliminate segregation in an
area as White as the Twin Cities.
E.
On the Ground in Minneapolis
Trends in Minneapolis schools mirror the trends in national
segregation statistics, showing that schools segregated by race are
invariably poor schools as well. Before the litigation in Booker v.
Special School District No. 1-Minneapolis's first desegregation
lawsuit-the MSD was 85% White. 131 Now, after the subsequent
shift of the White middle-class to suburban enclaves, the MSD is
73% non-White and has 68% of its students receiving free or
32
reduced lunch.'
The severely segregated MSD graduates only 55% of its
students. 33 Yet nearly 91% of adults in the Twin Cities region
have at least a high school diploma and more than 33% have at
least a college degree. 34 In contrast to the 55% graduation rate in
ACHIEVEMENT: A REVIEW OF THE RESEARCH vi (1982).
129. Id.
130. Id.
131. See 351 F. Supp. 799, 802 (D. Minn. 1972) (finding that 55,735 of 65,201
MSD students were Caucasian).
132. Minn. Dep't of Educ., supranote 94.
133. Id. "According to the most recent [Minneapolis] district data, the city's
seven high schools had a 78 percent graduation rate. However, add in the contract
alternatives, such as the Center School ....
The City, Inc.... and others, and the
graduation rate drops to 54.5 percent." Scott Russell, Schools Become Big Issue in
Mayor's Race, SKYWAY NEWS (Minneapolis), Sept. 26, 2005, available at
http://www.skywaynews.net/articles/2005/09/26/news/newsO2.txt.
134. In 2000, the percentage of adults with a high school diploma in the thirteencounty Twin Cities region was 90.6%. U.S. CENSUS BUREAU, PROFILE OF GENERAL
DEMOGRAPHIC CHARACTERISTICS:
PAUL,
MN--WI
MSA
2000, GEOGRAPHIC AREA: MINNEAPOLIS--ST.
(MN
PART)
2
(2000),
http://censtats.census.gov/data/MN/390275120.pdf.
graduation rate as of 2000 was 80.4%.
The nationwide high school
KURT J. BAUMAN & NIKKI L. GRAF, U.S.
Law and Inequality
[Vol. 24:269
Minneapolis, adjacent school districts graduate 88% to 100% of
135
their students.
Academic attainment and achievement declined as economic
and racial segregation became more severe, as illustrated by the
MSD. As the poverty concentration in the MSD increased from
46%136 to 68%,137 the graduation percentage rate dropped by more
13
than 13%. 8
With the exception of schools in the southwest lakes area of
the city, families are not choosing most Minneapolis schools.
Minneapolis enrollments have dropped sharply, declining 18% in
the new millennium, from 48,000 to 39,913 students. 139 In
contrast, during the four years from 2000 to 2004, public school
enrollments declined only 2.1% statewide. 140 In addition, for every
CENSUS
BUREAU,
EDUCATIONAL
ATTAINMENT:
2000
1
(2003),
http://www.census.gov/prod/2003pubs/c2kbr-24.pdf.
135. Minnesota's state-wide graduation rate in 2005 was 89%. Minn. Dep't of
Educ., School Report Card: Statewide (2005), http://education.state.mn.us/Report
Card2005/schoolDistrictInfo.do?SCHOOL NUM=000&DISTRICT_NUM=9999&DI
STRICTTYPE=99 (last visited Feb. 11, 2006). Data for individual districts and
schools are accessible from the index at Minn. Dep't of Educ., supra note 96.
136. U.S. DEP'T OF EDUC., NAT'L CTR. FOR EDUC. STATISTICS, CHARACTERISTICS
OF THE 100 LARGEST PUBLIC ELEMENTARY AND SECONDARY SCHOOL DISTRICTS IN
THE
UNITED
STATES:
1992-93
36
(1995),
available
at
http://nces.ed.gov/pubs95/95800.pdf.
137. Minn. Dep't of Educ., supra note 94.
138. In the 1989-1990 school year, the Minneapolis School District enrolled 2,945
students in the ninth grade.
Minn. Dep't of Educ., 1989-1990 Enrollment,
http://education.state.mn.us/mde/static/DEG8990.XLS (last visited Mar. 22, 2006).
The District graduated 1,664 students in the 1992-1993 school year. Minn. Dep't of
Educ., 1992-1993 Graduates, http://education.state.mn.us/mde/static/pg9293.xls
(last visited Mar. 22, 2006). In the 2001-2002 school year, the Minneapolis School
District enrolled 3,584 students in the ninth grade. Minn. Dep't of Educ., 20012002 enrollment, http://education.state.mn.us/mde/static/deg0102.xls (last visited
Mar. 22, 2006). The District graduated 1,757 students in the 2004-2005 school
year.
Minn.
Dep't
of
Educ.,
2004-2005
Graduates,
http://education.state.mn.us/mde/static/GradsGendEthn-Public045.xls.
(last
visited Mar. 22, 2006).
139. HAZEL REINHARDT, A REPORT TO THE MINNEAPOLIS SCHOOL DISTRICT AS
PART OF THE FACILITIES UTILIZATION PLAN: AN ANALYSIS OF ENROLLMENT AND
ENROLLMENT PROJECTIONS 26 (2004), available at http://www.mpls.kl2.mn.
us/sites/f707122598444da696c0996b9c74b221/uploads/demography-report.pdf.
140. Declines were especially large in Ramsey and Hennepin counties. Martha
McMurry, Enrollment Declines are Widepsread Since 2000, POPULATION NOTES
(Minn. State Demographic Ctr., St. Paul, Minn.), Apr. 2005, at 3, available at
http://www.demography.state.mn.us/PopNotes/Enrollment%20Declines.pdf.
During those four years, sixteen of eighty-seven counties experienced enrollment
growth, and they were mostly in Twin Cities suburban counties, especially Scott,
Sherburne, Wright, Dakota, and Carver. Id.
2006]
DESEGREGATION SETTLEMENT
student who transfers into the MSD, six transfer out, by far the
14 1
largest negative ratio in the state.
These disparities are also becoming apparent in suburban
districts surrounding Minneapolis. Robbinsdale, a nearby innerring suburb and the largest recipient of CIY suburban transfer
students, is 64% White and has a free and reduced lunch
population of 32%.142 Several other suburban districts, such as
Richfield and Bloomington, have also experienced substantial
racial change. It is important to note that these districts have also
experienced White flight, but were never under a court order to
desegregate.
Adjacent to Minneapolis is the Edina School District, which
enrolls 88% White students, with a 6% free or reduced lunch
enrollment. 43 Parents take notice of these demographics and the
quality of a school district as evidenced by its test scores. Transfer
statistics are one indication of this: Edina has a four to one ratio
of students transferring in to their district versus students leaving
the district, compared to a six to one outflow in Minneapolis. 144
II. Legal Responses to Segregation in Minnesota
School segregation of this magnitude matters because the
racially discriminatory effects are unfair to children.
The
mechanisms that brought about this state of affairs can be
explained to some degree, but there are no easy solutions as to
how to achieve integration and share the opportunity of middleclass schools with children of all races. The following sections
attempt to describe the history of school desegregation in
Minneapolis and the demographic change in both Minneapolis and
its neighboring suburbs.
A. Booker v. Special School District No. L..Desegregationin
Minneapolis and Resegregation in the Suburbs
The story of segregation in Minneapolis schools and the
resultant White flight from the city-only desegregation plan begins
141. Id.
142. Minn.
Dept.
of
Educ.,
School
Report
Card:
Robbinsdale,
http://education.state.mn.us/ReportCard2005/schoolDistrictInfo.do?SCHOOLNUM
=00&DISTRICTNUM=0281&DISTRICT TYPE=O1 (last visited Nov. 1, 2005).
143. Minn.
Dept.
of
Educ.,
School
Report
Card:
Edina,
http://education.state.mn.us/ReportCard2005/SchoolDistrictlnfo.do?SCHOOLNU
M=0273&DISTRICTTYPE=01 (last visited Feb. 11, 2006).
144. Id.
Law and Inequality
[Vol. 24:269
with Booker v. Special School DistrictNo. 1.145 Because the court's
desegregation remedies were contained only within the
Minneapolis city boundaries, middle-class Whites could easily flee
the city and those remedies to suburban jurisdictions. Lifting of
the desegregation order in the 1980s, coupled with a return to
neighborhood schools, had the predictable effect of re-segregating
Minneapolis's schools. Nevertheless, the lessons of Booker remain
important because many of the methods of segregative school
policies remain the same today.
1. Booker's Impact on School Enrollment in Minneapolis
Racial discrimination was a fact of life in Minneapolis's
public schools throughout the 1950s and 1960s.146 Like many
Northern cities, Minneapolis had segregated neighborhoods that
undoubtedly contributed-and continue to contribute-to creating
segregated schools. 147 Desegregation played out in Minneapolis as
it played out across the rest of the nation-against the backdrop of
President Nixon's anti-busing Southern strategy and the resultant
decimation of federal desegregation remedies by the United States
148
Supreme Court.
The first Supreme Court case to test Northern desegregation
was Keyes v. School District No. 1.149 The Keyes Court held that de
jure racial segregation could be found in a district that had no
history of state-mandated school segregation, as long as the
prerequisite "segregative intent" could be found. 150
145. 351 F. Supp. 799 (D. Minn. 1972).
146. Cheryl W. Heilman, Booker v. Special School District No. 1: A History of
School Desegregationin Minneapolis,Minnesota, 12 LAw & INEQ. 127, 129 (1993).
147. See id. at 130 (describing all-White and all-Black neighborhoods as
contributing to segregation).
148. See, e.g., Nathaniel Jones, The Judicial Betrayal of Blacks Again: The
Supreme Court's Destruction of the Hopes Raised by Brown v. Board of Education,
32 FORDHAM URB. L.J. 109, 114-15 (2004) (observing the difficulty of implementing
truly equal education in wake of Supreme Court education jurisprudence); see also
JOHN W. DEAN, THE REHNQUIST CHOICE 47 (2001) (quoting Richard Nixon as
follows: "I don't care if he's a Democrat or a Republican... he must be against
busing").
149. 413 U.S. 189 (1973).
150. See id. at 211. In Keyes, the plaintiffs had conceded that segregative intent
was a necessary component of finding segregation in a school where de jure legal
separation of the races had not been explicitly enforced by law in the past. See id.
at 198. For this reason, Keyes should not be viewed as being overturned by a lat3er
case, Washington v. Davis, 426 U.S. 229 (1976), as the plaintiffs in Washington
conceded that no discriminatory intent existed; rather, Keyes was modified to the
extent that proof of disparate impact is now insufficient to show a constitutional
2006]
DESEGREGATION SETTLEMENT
Moreover, segregative intent in a substantial part of the
district could be imputed to the district as a whole, providing a
151
supervising court with the authority to order district-wide relief.
Denver's public schools had acted with segregative intent by
making teacher and student assignments based on race, aligning
school attendance boundaries to segregate on the basis of race, and
by increasing density in segregated schools, as opposed to
Southern-style desegregation where assignments were explicitly
based on race. 152 Keyes begins with the analysis that what is or is
not a segregated school depends on the facts of each case, but also
outlines a number of factors that could establish segregative
intent.153
Back in Minneapolis, racial separation was encouraged and
intensified by changing attendance boundaries, giving "special
transfers" to White students at their parents' request, and
permitting White students to opt out of attending minority
schools.15 4 Two suits by the NAACP forced the District to remedy
segregation, one in the 1970s which led to busing within the city of
Minneapolis, and one in the 1990s which led to the creation of the
CIY. The 1970s suit relied on federal court oversight, while the
1990s lawsuits turned to state court remedies after the demise of
desegregative case law in the federal courts. The 1990s cases are
discussed in greater detail later in this Article.
The Booker court detailed findings of segregation extensively
in its opinion. 55 It noted that segregation was probably starkest
in the elementary schools, which tend to be much smaller than
secondary schools. 156 Nearly three-quarters of Whites attended
elementary schools with virtually no minorities, while 55% of
violation. See id. at 239.
151. See Keyes, 413 U.S. at 208 ("[W]e hold that a finding of intentionally
segregative school board actions in a meaningful portion of a school system, as in
this case, creates a presumption that other segregated schooling within the system
is not adventitious.").
152. Id. at 201-02 (listing acts which, when aggregated, convinced the Court of
segregative intent).
153. Id. at 196 (listing the factors the Court looks for in deciding if a school is
segregated).
154. Booker v. Special Sch. Dist. No. 1, 351 F. Supp. 799, 804 (D. Minn. 1972);
see also Heilman, supra note 146, at 130. Heilman served as a law clerk to Judge
Larson, who oversaw the Booker-led desegregation, just as the court supervision
was ending. See id. at 127. Her article supplements much of the background for
this narrative where the reported case is silent. See id.
155. See Booker, 351 F. Supp. at 802.
156. See id.
Law and Inequality
[Vol. 24:269
Black children attended schools that were more than 30%
minority. 157 At least three elementary schools had minority
enrollments totaling more than 70%, while several schools had
fewer than six minority students total.158 Noting that the size and
location of Bethune Elementary "were intended to have the effect
of continuing the pattern of [racial segregation,]" Judge Larson
found that Bethune could only have more obviously been a school
for minorities if the MSD had written the words "Black school...
over the door."'159
Enrollments of minority students in
Minneapolis's junior and senior high schools followed similar but
less extreme patterns, due in part to the fact that they were
160
generally fewer in number and had larger enrollments.
The Booker court found that the District promoted
segregation by maintaining over-capacity minority schools when
61
nearly adjacent White schools could easily handle the overflow.'
For example, Washburn High School received additions in 1967 to
deal with being around 600 students over-capacity. 162 Nearby
163
Central High School ran about 600 students under-capacity.
Washburn's minority enrollment was less than 3% Black, while
Central enrolled about 23% Black students. 164 The MSD offered
165
no reasoning for this decision during the trial.
Similarly, the MSD encouraged segregation through the
construction of new buildings. 166 Judge Larson found that the
MSD built smaller-than-average White schools in White
neighborhoods that were adjacent to Black neighborhoods. 167 The
nearby minority communities received larger-than-average
elementary schools.' 6 ' As an example, Page Elementary-an all
White school-built in 1958, could hold 300 students and was the
fifth smallest elementary in the district; nearby Field-a largely
Black school-could handle nearly 600 students. 169 To Judge
157.
158.
159.
160.
161.
162.
163.
164.
165.
166.
167.
168.
169.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
at
at
at
at
803.
802-03 (stating similar statistics as those of the secondary schools).
803-04.
803.
at 803-04 (concluding this from statistics expounded upon later).
at 803.
at 804.
In an attempt to ward off the looming desegregation lawsuit,
2006]
DESEGREGATION SETTLEMENT
Larson, the implications were obvious: Minneapolis intended to
concentrate as many minority students as possible in each "Black
school," while permitting Whites to remain in segregated, White
schools.170
Boundary changes also permitted the MSD to perpetuate
segregation. Changing attendance boundaries permitted the MSD
to shift minority students from overwhelmingly overcrowded
schools to only slightly overcrowded schools. 171 For example, the
MSD instituted boundary changes in 1968 to maintain Washburn
172
and Southwest high schools as segregated Black environments.
In addition, the MSD permitted one-way flight out of its
attendance boundaries by granting special transfers from largely
high-minority schools. 173
Finally, the creation of "optional"
attendance zones on the boundaries of minority neighborhoods
permitted Whites to opt out of attending increasingly minority
schools.174
Judge Larson eventually ceded control of the district after
several years of progress on a desegregation plan. He did so in
reliance on the State's assumption of responsibility for monitoring
and enforcing a rule to maintain integrated schools. 175 The
supervision was based on the 15% rule, which required each school
in a district to have minority enrollment no higher than 15% of the
district's average minority enrollment. 176 Each district was viewed
on its own terms; there was no inter-district operation of the rule.
As might be expected, it produced integration for a time, but also
177
stimulated White flight.
Desegregation was for a time successful, such that ten years
after the desegregation process began in earnest, racially
identifiable schools arguably did not exist in Minneapolis.
Reporter Gregor Pinney noted, "[n]o longer does the city have
minority schools in the center and 'white schools' everywhere
the District combined Field with Hale Elementary School, which was 98% White.
Judge Larson noted that the community resistance to this plan was "vehement."
Id. at 806.
170. Id. (coming to this conclusion after seeing statistics dealing with different
schools' capacity issues).
171. See id. at 804.
172. See id.
173. See id. (finding that race played a role in these special transfers).
174. See id. (concluding this from the general course of conduct of the district).
175. See Heilman, supranote 146, at 171-73.
176. See id. at 175.
177. See id. at 170.
Law and Inequality
[Vol. 24:269
else."'178 Dissolution of the federal decree relied primarily on the
oversight of the MSD, with the State monitoring compliance, for
continuing desegregation.
Despite his decision to give up
jurisdiction over the MSD, Judge Larson continued to have doubts
about the willingness of a school district to desegregate without
continued oversight and pressure from a federal judge. 179 With the
increasingly evident segregation in the metro-area schools, Judge
Larson's doubts have proven to be well-founded.
During the 1980s, with significant in-migration of Blacks and
Latinos after the lifting of federal supervision, Minneapolis's
schools underwent a sweeping racial transformation.
White
enrollment had fallen to less than 50% by 1989.180 Minneapolis
and St. Paul were in an untenable position; as White flight and
minority enrollment increased and as many neighborhood schools
underwent racial transition, White parents and politicians stepped
up the call again for neighborhood schools. In 1993, a Black
mayoral contender sought political backing from a largely White
electorate by echoing this call for a return to neighborhood
schools.' 8 ' The School Board followed the mayor's lead, the MSD
went back to neighborhood schools in 1995, and many city
schools-already experiencing flight and decreased enrollment by
the middle-class-became deeply segregated.18 2 Sadly, documents
uncovered after the decision reveal that school leaders in
Minneapolis knew in advance that a return to neighborhood
18 3
schools and increased funding was doomed to fail.
178. Gregor W. Pinney, DesegregationStrips Race Labels Off Schools, STAR TRIB.
(Minneapolis), Aug. 31, 1981, at 1A.
179. See Heilman, supra note 146, at 172.
180. Nat'l Ctr. For Educ. Statistics, U.S. Dep't of Educ., Common Core of Data
(table on file with author).
181. Monika Bauerlein, Separate But Equal, CITY PAGES (Minneapolis), Nov. 1,
1995, http://www.citypages.com/databank/16/778/article2353.asp (last visited Feb.
28, 2006). Proposals to return to neighborhood schooling are sometimes framed in
the context of funding shortfalls, prompting school officials to reduce bus services
and school choice. See Sanjay Bhatt, Seattle Won't Close Schools, SEATTLE TIMES,
May 18, 2005, at Al.
182. See Bauerlein, supra note 181. Not only did White enrollment decline and
move to the suburbs, but minority suburbanization is increasing among the Black
middle-class, with more than half of the country's minorities living in the suburbs.
See Orfield & Luce, supra note 52.
183. See KAHLENBERG, supra note 21, at 176. Political leaders in other regions
around the country have also accepted accelerated funding in exchange for the
withdrawal of desegregation suits. See James E. Ryan, Schools, Race, and Money,
109 YALE L.J. 249, 263-64 (1999) (explaining the use of desegregation lawsuits to
extract money from the state for.poor schools).
2006]
DESEGREGATION SETTLEMENT
Achievement and graduation in those schools began to
plummet.
The MSD built schools of various sizes in poor
segregated neighborhoods that would be virtually all-minority the
day they opened. It added mobile class rooms to the increasingly
White and in-demand schools on the city's affluent southwest side.
As the MSD went through massive racial change in the
1990s, it experienced a catastrophic loss of enrollment clearly
related to the pattern of school resegregation.1 8 4
As each
neighborhood school would become majority poor and lower-class,
a wave of White, Black, Asian, and Latino middle-class households
would move to more stably integrated neighborhoods in the city or
the suburbs. In the few areas with consistent access to magnet
schools designed to maintain racial integration and in the majority
White school areas on the far south side, middle-class White
enrollment grew and housing prices soared.
B. School Enrollment Today
After the return to neighborhood schools, at least fifteen
elementary schools in Minneapolis were virtually all-minority; by
2004, that number rose to nearly thirty.1 85 On the south side, a
wave of Latino emigration transformed elementary schools like
Jefferson and Anderson.18 6 North Minneapolis elementary schools
like Broadway and Jordan Park were heavily minority, with few or
no White students in many of their grades.18 7 By 2005, thirty-nine
standard public schools out of sixty-five were more than 75%
18 8
minority in a region that was 9% minority.
Concomitant with these demographic changes, the poorest
and most racially isolated schools have not closed the achievement
gap. A recent newspaper article noting the success of some
Minneapolis and St. Paul schools in statewide testing also
184. ORFIELD, supra note 10, at 92.
185. See Institute on Race and Poverty, Twin Cities Demographics, slides 2-9,
http://www.irpumn.org/uls/resources/projects/irppres%2009-12-04.ppt
(last visited
Feb. 28, 2006) (showing pictorial presentation of demographics).
186. See id.
187. Id.
188. Id. The alternative schools within the district are even more segregated
than the standard schools. See Minn. Dep't of Educ., 2005-2006 EnrollmentsSchool-Special
Populations,
http://education.state.mn.us/mde/static/GenderEthnicityGrade-Schl0506.xls
(last
visited Mar. 22, 2006) [hereinafter Minn. Dep't of Educ., 2005-2006 EnrollmentsSchool-Special Populations]. For example, 613 of 703 students (87%) of students
enrolled in MSD alternative high schools in October 2005 were minorities. See id.
Law and Inequality
[Vol. 24:269
mentioned abysmal test scores in some schools.18 9 Jordan Park K8, for example, saw a decline from 28% to 13% in math test
passing rates. 190 Central city schools like these receive the most
state funding because they contain some of the poorest and,
therefore, neediest children. 191
Examples of specific schools reveal that in certain areas
segregation is even worse than the general area-wide data
indicates. Hall Elementary School had 350 students in 2001-2002,
313 of whom were Black, and now has a 96% enrollment of free or
reduced lunch students. 92 Bethune is nearly 100% non-White and
has seen a rapid decline in enrollment from a high of 668
elementary students to 334 in 2003, with a corresponding poverty
rate of 95% free or reduced lunch enrollment. 193 These examples
are not atypical, as many of the schools in near North and South
194
Minneapolis enrolled similarly high numbers of poor children.
There have also been schools in inner-ring suburbs that have
experienced substantial racial change. Robbinsdale's Northport
189. Norman Draper & Steve Brandt, State's Schools Meet the Test, STAR TRIB.
(Minneapolis), Apr. 2, 2005, at B1.
190. Id.
191. John Biewen, AMERICAN RADIOWORKS, Schooling Poor Kids in Minneapolis,
in
THE
FORGOTTEN
FOURTEEN
MILLION,
http://americanradioworks.publicradio.org/features/14_million/poor2.shtml
(last
visited Sept. 26, 2005).
Inner-city schools receive above-average per pupil
resources, but it cannot be said they receive the highest per pupil expenditures
because some rural districts are, per pupil, very expensive to operate. See, e.g.,
Minn. Dep't of Educ., School Report Card: Red Lake: Report to Taxpayers,
http://education.state.mn.us/ReportCard2005/loadFinanceAction.do?SCHOOLNU
M=000&DISTRICTNUM=0038&DISTRICT TYPE=01 (last visited Oct. 25, 2005).
However, the inner-city districts receive, total, far more resources than any other
districts in the state because they have the most students. The state average
hovers around $8,000-almost exactly that of the national average. See U.S. DEP'T
OF EDUC., NATL CTR. FOR EDUC. STATISTICS, COMMON CORE OF DATA, REVENUES
AND EXPENDITURES FOR PUBLIC ELEMENTARY AND SECONDARY EDUCATION: SCHOOL
YEAR 2002-03 10 (2005), http://nces.ed.gov/pubs2005/2005353.pdf. Minneapolis
schools receive about $3,000 more per student. See Minn. Dep't of Educ., School
Report
Card:
Minneapolis:
Report
to
Taxpayers,
http://education.state.mn.us/ReportCard2005/loadFinanceAction.do?SCHOOL_NU
M=000&DISTRICTNUM=OOO1&DISTRICTTYPE=03 (last visited Nov. 1, 2005)
[hereinafter Minn. Dep't of Educ., School Report Card: Minneapolis: Report to
Taxpayers].
192. Minn. Dep't of Educ., School Report Card: Hall Elementary,
http://education.state.mn.us/ReportCard2005/schoolDistrictInfo.do?SCHOOLNUM
=287&DISTRICT_NUM=OOO1&DISTRICTTYPE=03 (last visited Nov. 6, 2005).
193. See Minn. Dep't of Educ., School Report Card: Bethune Elementary,
http://education.state.mn.us/ReportCard2005/schoolDistrictInfo.do?SCHOOL_NUM
=107&DISTRICT NUM=OOO1&DISTRICTTYPE=03 (last visited Feb. 28, 2006).
194. See Institute on Race and Poverty, supra note 185.
2006]
DESEGREGATION SETTLEMENT
Elementary, for example, saw a precipitous decline in White
students and a corresponding increase in Black students. 195 Its
minority enrollment was at 27% in 1995, with 340 White children;
in 2003 the school went to 66% minority and 174 White children
96
enrolled.1
C. DecliningEnrollment and Charter Schools in Minneapolis
The statistics above tell the story of the rapid racial and
socioeconomic change that Minneapolis experienced after the end
of the Booker court's supervision. 197 Still, change continues to
affect Minneapolis schools. The MSD recently has begun to see
steep drops in enrollment, particularly in the most segregated
schools, and is projecting even further changes. Down from 49,242
students in 1998,198 the school district enrolled about 43,000
students in 2003,199 with part of the loss going to open enrollment.
Today, Minneapolis enrolls slightly fewer than 40,000 students.20 0
The Minnesota Department of Education reported that
Minneapolis is losing a total of more than 7,500 children to other
districts and charter schools and gaining only 1,200 from other
areas. 201 Minneapolis projects that by 2008, enrollment may drop
near 30,000 students-slightly more than half that of the previous
decade .202
In some of Minneapolis's neighborhoods, as the quality and
opportunity associated with their schools has declined, some
students have chosen to attend charter schools.2 03 Charter schools
were once proposed as a remedy to poorly run inner-city schools,
teaming up parental involvement with less administrative
195. See Minn. Dep't of Educ., supra note 142.
196. Id.
197. See Institute on Race & Poverty, supra note 185, slide 22. One statistic
indicates the number of preschool children, ages 0 to 4, declined sharply. Id. at
slides 19-25. Areas like Minnetonka and Maple Grove saw double-digit increases
in the percentages of young White children in their jurisdictions. Id. This data
should be interpreted carefully and not simply attributed to White flight because
other demographic factors could play a role.
198. NAT'L CTR. FOR EDUC. STATISTICS, COMMON CORE OF DATA, 1987-2002
School Years (table on file with author).
199. Tim Pugmire, Charter School Competition Heats Up in Minneapolis, MINN.
PUB.
RADIO
NEWS,
Nov.
25,
2003,
http://news.minnesota.publicradio.org/features/2003/11/25-pugmiret-charter/.
200. Minn. Dep't of Educ., supra note 94.
201. See id.
202. REINHARDT, supra note 139, at 33.
203. Pugmire, supra note 199.
Law and Inequality
[Vol. 24:269
oversight and management. 2 4
Indeed, charters operate
independently of the school district in which they reside and
permit parents or their sponsors to try to create innovative
learning strategies. 205 Minnesota. was the first state to enact
charter school legislation and has seen a relatively large increase
in the number of children attending charter schools. Between
2000 and 2004 alone, the number of children in Minnesota charter
schools increased 126.5%, or by nearly 8,000 students.2 06 Among
Minneapolis residents, the number of K-12 students attending
charters increased to nearly 3,500 students in 2003.207 Because of
their proximity to urban neighborhoods with residential
segregation, charter schools also tend to be heavily minorityapproximately 53% in 2004-and poor. 20 8 Many schools within
Minneapolis were more than 80% minority, sometimes nearly
100%.209
Several studies recently commissioned found widespread
failure to engage in good accounting practices among Minnesota's
charter schools. 210
In particular, many schools neglected to
adequately divide accounting duties among a sufficient number of
individuals, a measure that increases financial accountability and
helps protect against fraud. 2 11
These studies found limited
204. See PATRICIA ANDERSON, MINN. OFFICE OF STATE AUDITOR, FINANCIAL
TRENDS OF MINNESOTA SCHOOL DISTRICTS AND CHARTER SCHOOLS: FOR PERIOD
2000 TO 2004 35 (2005), available at http://www.auditor.state.mn.us/reports
/gidl2004/schooldistrict/schooldistrict_04_report.pdf. A recent report by the state
auditor found that many charter schools have failed due to lack of oversight and
poor management. Id. at 35-36. The Minnesota Department of Education only
recently required management training for leaders in charter schools. Id. at 35-38.
205. WILLIAM LOWE BOYD ET AL., WHAT REALLY HAPPENED: MINNESOTA'S
EXPERIENCE WITH STATEWIDE PUBLIC SCHOOL CHOICE PROGRAMS 11 (2002). As
charters are independent of the school district, a student attending a charter school
within the city limits of Minneapolis is not considered in the "head count" of the
MSD. We may speak of declining enrollment in the MSD, even if 100% of the
outflow is to charter schools wholly within the city limits.
206. ANDERSON, supra note 204, at 2, 6, 35-38.
207. REINHARDT, supra note 139, at 26.
208. ANDERSON, supra note 204, at 5-6; see also Institute on Race and Poverty,
Charter School Demographics, slide 4 (Jan. 23, 2006) (unpublished study, on file
with author).
209. Institute on Race and Poverty, supra note 208, at slide 5.
210. Matt Entenza, Charter Schools Study 2003, 1, 2-3 (2003) (unpublished
study, on file with author); see also Duchesne Paul Drew, Entenza to Call for
Charges in Charter-School Cases, STAR TRIB. (Minneapolis), Mar. 7, 2001, at B3;
Duchesne Paul Drew & Anthony Lonetree, A Call to Act on CharterSchool Woes,
STAR TRIB. (Minneapolis), Feb. 7, 2001, at Al.
211. Entenza, supra note 210, at 2-3. Of the thirty schools that had filed their
year 2000 reports by January 24, 2001, 73% had not adopted national accounting
2006]
DESEGREGATION SETTLEMENT
segregation of duties in 84% of charter schools in 2002,212
concluding that there was improper assurance that fraud did not
occur in at least one internal operation in more than 70% of
charter schools. 213 Similarly, Minnesota's charters schools have
increasingly failed to keep an updated list of General Fixed Assets,
2 14
which is an important safeguard against theft.
In addition to problems with accounting, Minnesota's charter
schools have not been in compliance with other oversight
measures. For example, many of the state's charter schools have
routinely failed to file their audits on time with the Department of
Children, Families, and Learning. 215 Without the transparency
provided by audits and access to board meeting minutes,
opportunities for hiding financial problems and perpetrating fraud
increase 216
With Minnesota charter schools getting more than $100
2 17
million from the state, the lack of oversight is a serious matter.
Within Minneapolis and St. Paul, at least eight schools have closed
because of financial mismanagement or ineptitude. 2 18 Closure of
charter schools because of mismanagement or financial failure is
not only a serious problem because of the misuse of public funds,
but because it inevitably leaves hundreds of children stranded in
219
the middle of their education.
standards designed to prevent excessive control by any one individual over a
school's spending and record-keeping. Drew & Lonetree, supra note 210, at Al.
The studies indicated that the schools viewed the staff increases necessary to
comply with proper accounting practices as cost prohibitive. Entenza, supra note
210, at 3.
212. Entenza, supra note 210, at 2.
213. For example, in 2001, Excel Academy for Higher Learning was found to
have no policy of issuing receipts or other standard method for handling incoming
funds, the school failed to document the amounts of salaries that were paid to
employees, and it lacked a system for obtaining formal approval of expenditures by
individuals with spending authority. Id. at 6-7.
214. See id. at 4.
215. See id. at 3.
216. See id.; see also Norman Draper, ChartersImprove as They Struggle, STAR
TRIB. (Minneapolis), Jan. 27, 2003, at B1.
217. See James Walsh, Entenza Calls Many Charter Schools Lax, STAR TRIB.
(Minneapolis), Aug. 13, 2004, at B3.
218. See Institute on Race & Poverty, supra note 208, at slide 11.
219. See, e.g., Lourdes Medrano Leslie & Anne O'Connor, Closing of School Hits
Hard, STAR TRIB. (Minneapolis), June 1, 2000, at Al (reporting on the early closing
of Success Academy, a St. Paul charter school).
Law and Inequality
[Vol. 24:269
D. Effect of Instability in Minneapolis Schools
In addition to a loss of enrollment due to charter schools and
open enrollment options, the racial change in the wake of Booker
and the return to neighborhood schools played a large role in the
declining enrollment in Minneapolis schools. During the Booker
era of desegregation in Minneapolis, White enrollment in
Minneapolis public schools declined by almost half, reducing the
percentage of Whites in the MSD by 20%.220 Middle-class people of
color followed this trend of disinvestment from declining
communities, with more than half of their households moving to
221
the suburbs.
At the outer edge of the city, as schools experience rapid
White flight and transition, neighborhoods rapidly lose
population. 222 Schools in North Minneapolis like Bethune and
Lincoln all saw rapid declines in enrollment in the late 1990s and
224
the early 2000s. 2 2 3 Bethune elementary is nearly 100% minority
and has seen a rapid decline in enrollment from a high of 640
students in 1998225 to a low of 260 in 2005 226-nearly a 60% loss in
enrollment.
Some schools, such as the well-integrated Lake
Harriet Upper Campus and Barton, saw an increase in enrollment
227
over the same period.
220. Heilman, supranote 146, at 169.
221. See Orfield & Luce, supra note 52, at 1 (reporting neighborhood-level data
showing that nearly half of the minority population lives in the suburbs of the 102
largest metropolitan regions of the United States).
222. See ORFIELD, supra note 10, at 39-40.
223. Bethune declined from 640 enrolled students in 1998-1999 to 260 enrolled
students in 2005-2006. Compare Minn. Dep't of Educ., 2005-2006 EnrollmentsSchool-Special
Populations,
http://education.state.mn.us/mde/static/FallPopulSchl0506.xls (last visited Mar. 22, 2006) [hereinafter Minn. Dep't of Educ., 20052006 Enrollments] with Minn. Dep't of Educ., 1998-1999 Enrollments-SchoolSpecial Populations,
http://education.state.mn.us/mde/static/fps9899.xls
(last
visited Mar. 22, 2006) [hereinafter Minn. Dep't of Educ., 1998-1999 Enrollments].
Lincoln declined from 739 enrolled students in 2000-2001 to 625 enrolled students
in 2005-2006. Compare Minn. Dep't of Educ., 2000-2001 Enrollments-SchoolSpecial Populations, http://education.state.mn.us/mde/static/FPS0001.xls
(last
visited Mar. 22, 2006) [hereinafter Minn. Dep't of Educ., 2000-2001 Enrollments]
with Minn. Dep't of Educ., 2005-2006 Enrollments,supra.
224. Minn. Dep't of Educ., 2005-2006 Enrollments-School-Special Populations,
supra note 188.
225. Minn. Dep't of Educ., 1998-1999 Enrollments,supra note 223.
226. Minn. Dep't of Educ., 2005-2006 Enrollments, supra note 223.
227. Lake Harriet Upper Campus increased from 453 enrolled students in 20002001 to 640 enrolled students in 2005-2006. Compare Minn. Dep't of Educ., 20002001 Enrollments, supra note 223 with Minn. Dep't of Educ., 2005-2006
Enrollments, supra note 223. Barton increased from 570 enrolled students in 1998-
2006]
DESEGREGATION SETTLEMENT
The instability created by declining enrollment causes some
of Minneapolis's most talented teachers to leave in search of a
district with increasing enrollment. 228 Suburban schools with
increasing diversity need the skills teachers from Minneapolis
possess from working with low-income and minority children, and
thus have incentive to lure Minneapolis teachers away. 29 After
their departure and the continuing decline in enrollment, the
school board finds itself in a position of having to close schools
despite vehement local opposition. 230 On top of the alreadydifficult problems of educating children in schools of concentrated
poverty, the inner-city districts now face insurmountable problems
from declining enrollment and staffing.
E. Segregation in Inner-ring Suburbs
Inner-ring suburban school districts are also undergoing the
same sort of transformation Minneapolis schools experienced a
generation before. The Bloomington and Osseo school districts
provide concrete examples of this increasing stratification. Osseo
has been in violation of the state desegregation rules since 1993,
but the state has yet to take action that would correct the
problem. 231 In Osseo, more than one-third of the district's schools
are "racially identifiable," 232 as the Minnesota desegregation rules
define them. 233 Osseo's Park Center Senior High is more than 55%
1999 to 761 enrolled students in 2005-2006. Compare Minn. Dep't of Educ., 19981999 Enrollments, supra note 223 with Minn. Dep't of Educ., 2005-2006
Enrollments, supra note 223.
228. See Steve Brandt, Urban Teacher Exodus Swells, STAR TRIB. (Minneapolis),
Aug. 11, 2005, at Al. Declining enrollment, if severe enough, can lead to school
closures and teacher layoffs. Combined with an already-stressed administration
and lack of attention to teacher needs, the threat of future layoffs has driven some
qualified teachers to seek employment in Bloomington and other nearby districts
with booming enrollment. Id. One teacher noted that in the six years of her
employment with Minneapolis, she had received five layoff notices but had been
hired back each year. Id.
229. Id.
230. See Mary Jane Smetanka, Plan Rekindles Memories of '82, STAR TRIB.
(Minneapolis), Feb. 10, 2004, at A8 (noting threat of school closures due to decline
in enrollment); see also Sanjay Bhatt, Draft Plan to List School Closures, SEATTLE
TIMES, Apr. 20, 2005, at BI; John Gehring, Dips in Enrollment Posing Challenges
for Urban Districts, EDUC. WEEK, Mar. 2, 2005, at 1 (discussing nationwide
enrollment losses in urban school districts).
231. Orfield, supra note 10, at 287.
232. See The Data Ctr., Minn. Dep't of Educ., http://cfl.state.mn.us/datactr/ (last
visited June 22, 2005) (compilation of data on file with author).
233. See MINN. R. 3535.0110, subp. 6 (2005).
Law and Inequality
[Vol. 24:269
minority, 234 twenty-six points higher than the district high school
student average. 23 Conversely, nearby Maple Grove Senior High
has 8% minority enrollment. 236 The spatial separation of Whites
and minorities in the Osseo schools is even starker in the
elementary schools, which are typically smaller schools with
higher racial concentrations.237
In Osseo, parents fought to keep the status quo, as
residential segregation within the district was inevitably
translated into school segregation.238 The district now contains
nine racially identifiable schools out of twenty-seven standard
high, middle, and elementary schools. 239
Its total minority
enrollment is 36%, more than 20% higher than neighboring
Wayzata, which is at 14%, barely qualifying Osseo as a racially
240
isolated district.
Contemporaneous to this increasing racial isolation in
Osseo's schools was a contentious disagreement over the
redrawing of attendance lines in the 1990s. Parents protested and
the superintendent declared that no east-west busing would
occur-the remedy that could conceivably bring Osseo's schools
into racial balance. 241 Dan Schulman, an attorney for the NAACP,
blamed board members for orchestrating segregation.2 42 The Star
Tribune noted that the school plan was reminiscent of a highly
visible controversy in Maple Grove, a suburban city at the western
edge of the Osseo school district. That issue involved an attempt
2 43
to prevent the building of low-income housing in the community.
The result of the controversial boundary adjustments was that the
school board chose neighborhood schools over integration, and
Osseo's schools have become predictably more and more
234. MINN. DEP'T OF EDUC., RACE DATA BY SCHOOL FOR THE 2004-05 SCHOOL
YEAR (2005) (on file with author).
235. Id.
236. Id.
237. Id.
238. See Norman Draper, Battle of the Borders, STAR TRIB. (Minneapolis), Jan.
29, 2001, at Al ("Recently, Osseo parents revolted over a plan to turn one school
into an early-education center and another into a kindergarten center... parents
were up in arms over what they feared was an effort to redraw school boundaries to
lessen the racial imbalance .... ").
239. The Data Ctr., supra note 232.
240. MINN. DEP'T OF EDUC., supra note 234.
241. See Mike Kaszuba, District Wrestles with Racial Imbalance, STAR TRIB.
(Minneapolis), Oct. 11, 1998, at B1.
242. Id. at B9.
243. Id.; see also ORFIELD, supra note 10, at 127-28.
2006]
DESEGREGATION SETTLEMENT
segregated. 244
Recent boundary adjustments in Bloomington provide
another example of the effect that racial change and neighborhood
schooling have on the segregation of opportunities in suburban
districts. Before the fall of 2001, Bloomington's public schools
included a combination of neighborhood and district-wide schools
from kindergarten to high school. 245
Two district-wide
"intermediary" schools were used for grades five through eight? 46
The school board planned to consolidate the grades into middle
schools so that the children would have fewer transition points as
they progressed to high school, providing stronger school and peer
2 47
ties by increasing the amount of time spent in each school.
In facts similar to those found in the Supreme Court's
decision in Columbus Board of Education v. Penick,248 the district
proposed four attendance boundary plans for the Bloomington
middle schools. 249 They varied in terms of the segment of the city
they captured but ultimately focused on achieving certain goals:
keeping contiguous boundaries with existing elementary schools,
maintaining racial balances, and increasing the proportion of
250
children within walking distance of the school they attend.
Bloomington was out of compliance with the state desegregation
rules, as some other districts had been since the enactment of the
new rules in 1999.251 Opposition from the Bloomington School
244. See ORFIELD, supra note 10, at 50.
245. See Bloomington Public Schools, Actions, SCH. BOARD NEWS, Feb. 9, 1999
(outlining the district's reorganization plan).
246. Id.
247. See id. (noting the intended effects of the new grade level organization).
248. 443 U.S. 449 (1979).
249. Bloomington Public Schools, Transition Reports: Pros and Cons of Middle
School Boundary Options A-D (2000) (on file with author).
250. See id.
251. See MINN.
INTEGRATION
OFFICE OF
REVENUE
THE LEGISLATIVE AUDITOR, SCHOOL DISTRICT
29
(2005),
available
at
http://www.auditor.leg.state.mn.us/ped/pedrep/integrevf.pdf
(noting
that
Bloomington has had at least one racially identifiable school since 1997, the
inception of Minnesota's Integration Revenue Program). Bloomington currently
has one racially identifiable elementary school-meaning that the minority
enrollment at the school is twenty percentage points above the district minority
enrollment-and one that is on the cusp of becoming racially identifiable. Compare
Minn. Dep't
of Educ.,
School
Report
Card:
Bloomington
(2005),
http://education.state.mn.us/ReportCard2005/schoolDistrictInfo.do?SCHOOLNUM
=000&DISTRICTNUM=0271&DISTRICTTYPE=01 (last visited Feb. 28, 2006)
with Minn. Dep't of Educ., School Report Card: Valley View Elementary (2005),
http://education.state.mn.us/ReportCard2005/schoolDistrictlnfo.do?SCHOOLNUM
=459&DISTRICTNUM=0271&DISTRICTTYPE=01 (last visited Feb. 28, 2006)
Law and Inequality
[Vol. 24:269
Board and residents to the most integrative plan seemed to focus
mostly on the time it would take to bus certain children; others
were troubled by the fact that the buses would pass by the nearest
schools and proceed to schools farther away. 252 Another group of
concerned residents, 250 in all, signed a petition asking the School
Board not to choose a plan that would worsen racial and social
segregation. 253 Seventeen residents also testified to the School
Board about the boundaries and the negative impact school
segregation would have on their community.2 54 The District chose
what was termed "Plan D," which kept contiguous boundaries with
elementary schools, but did not maintain racial balance in the
255
three schools.
The redistricting in Bloomington may have caused one
middle school to concentrate rapidly by race and class. In 2001,
when the boundary change went into effect, the racial averages of
the three schools were slightly different; Olson Middle School was
16.8% minority, Oak Grove was 21.6% minority, and Valley View
was 32.8% minority.256 However, the average minority enrollment
at Valley View has increased since the middle school boundaries
were redrawn in 2000-2001.257 Presently, Olson Middle School is
18.5% non-White; Oak Grove is 27% non-White; and Valley View
is about 40% non-White. 258 The district-wide average of minority
students in Bloomington middle schools is 27.9%.259 Thus the
trend in minority enrollment has generally been increased
2 60
diversity, though at a greater rate in some schools.
(showing that Valley View Elementary minority enrollment is more than twenty
percentage points above the Bloomington minority average).
252. See Bloomington Public Schools, supra note 249, at 1-2.
253. Bloomington Sch. Bd., Meeting Minutes (Jan. 8, 2001) (on file with author).
254. Id.
255. See Bloomington Sch. Bd., Meeting Minutes (Jan. 22, 2001) (on file with
author); Bloomington Public Schools, supra note 249.
256. The Data Ctr., supra note 232.
257. See id.
258. Id.
259. Id.
260. See id.
2006]
309
DESEGREGATION SETTLEMENT
T.1 Middle School Enrollment in Bloomington, by Grade
261
2004-05 School Year
Grade
Oak Grove
6th
7th
8th
Total
Valley View
6th
7th
8th
Total
Olson
6th
7th
8th
Total
Minorities
86
67
71
224
Total
Enrollment
301
271
259
831
Minority
Percentage
28.57143
24.72325
27.41313
26.95548
44.70046
42.27642
34.58333
40.39829
23.36066
17.70833
15.45741
18.49234
The trend in all three middle schools is increased minority
enrollment, as each sixth grade class in the 2004 fall enrollment
had a higher percentage of minority students. 262 Table 1 indicates
that Oak Grove has the least amount of racial transition between
its three grades. An analysis of the enrollment patterns is beyond
the scope of this paper, but the Oak Grove attendance area tends
to traverse east-west boundaries in Bloomington.2 63 Plans that
could have conceivably drawn all three schools into a closer racial
balance were not selected, most likely for reasons such as walking
distance, elementary boundary cohesiveness, and opposition to
busing. 264 Bloomington should have been able to create a system
that did not segregate its schools by creating school boundaries
that captured a diverse population in Bloomington and
incorporated distinct neighborhoods.
261. MINN. DEP'T OF EDUC., supra note 234 (figures may not add up to 100% due
to rounding).
262. See id.
263. See Bloomington Public Schools, supra note 249.
264. See id. at 1-5.
Law and Inequality
[Vol. 24:269
III. The Choice Is Yours: An Attempt to Desegregate
Minneapolis Public Schools From 1995 to Today
After Judge Larson ended court supervision, integration
became an elusive goal in Minneapolis's public schools. The MSD
began operating under the state 15% rule.265 In 1995, the state
Board of Education officially abandoned the 15% rule.2 66 A
metropolitan rule requiring schools across the region to be in
balance was proposed and rejected in 1999 in favor of less
stringent rules. 267 By then, seven of the MSD's elementary schools
were in violation of the rule.268
A.
The NAACP and Xiong Lawsuits
Dismayed by this increasing segregation, the Minneapolis
Branch of the NAACP filed suit in state court on September 19,
1995, on behalf of all children enrolled in Minneapolis public
The named defendants included the State of
schools. 269
Minnesota, the Board of Education, both chambers of the
Minnesota legislature, the Metropolitan Council, 270 and various
state officials. 271 The complaint in the suit began by noting the
racial and economic disparity between Minneapolis schools and
suburban schools. 272 Minneapolis schools were more than 59%
minority and 55% poor at the time of the complaint, while the
schools of surrounding suburbs were "overwhelmingly white" and
more affluent. 273 By the time the Xiong complaint was filed in
2 74
1998, the statistics had increased to about 70% each.
265. See supra note 176 and accompanying text.
266. Bauerlein, supra note 181.
267. Adoption of Rules Relating to Desegregation, Case No. 9-1300-10448-1, 56
19,
1999),
Hearings
Mar.
of Admin.
of
Minn.,
Office
(State
http://www.oah.state.mn.us/aljBase/130010448.rr.htm (noting Roundtable proposal
for a metropolitan-wide desegregation rule).
268. Id.
269. See Class Action Complaint at 2, Minneapolis Branch of the NAACP v.
State, No. 95-14800 (Minn. Dist. Ct. Sept. 19, 1995) [hereinafter NAACP Compl.].
The allegations in this complaint were substantially the same as those filed on
February 23, 1998. See Class Action Complaint, Xiong v. State, No. 98-2816 (Minn.
Dist. Ct. Feb. 23, 1998) [hereinafter Xiong Compl.].
270. The Met Council is a powerful regional government authority in the Twin
Cities with substantial control over the development priorities of the region. See
ORFIELD, supra note 10, at 173-180.
271. See NAACP Compl., supra note 269, at 2-3.
272. Id. at 2; see also Xiong Compl., supra note 269, at 2.
273. NAACP Compl., supra note 269, at 11.
274. Xiong Compl., supra note 269, at 10 ("[T]he public schools of the City of
2006]
DESEGREGATION SETTLEMENT
The plaintiffs argued that this segregated education
constituted a per se violation of the Minnesota Constitution's
education and equal protection clauses. 275 The year before the
filing of the NAACP complaint, the Minnesota Supreme Court had
found that the state's education clause-which places a duty on
the state legislature "to establish a general and uniform system of
277
public schools" 276-created a fundamental right to education.
The NAACP's framing of segregation as a state constitutional
problem mirrored the strategy of plaintiffs who had been
successful to varying degrees using state equal protection and
education clauses to promote school funding equity. 278 The claim
that segregated schools violated a state constitutional education
clause was argued in a contemporaneous action by plaintiffs from
Hartford, Connecticut, under that state's constitution.2 79 The final
decision in that case, which was argued nine days after the filing
of the NAACP complaint, held that the state's education clause,
along with other constitutional provisions, required Connecticut to
2
remedy Hartford's segregated schools. 80
The plaintiffs in NAACP v. State alleged that the segregated
Minneapolis schools also, as an issue of fact, provided an
inadequate education, "[blecause the Minneapolis public schools
must devote disproportionately large resources to dealing with the
many problems and difficulties that accompany poverty and racial
segregation . *.".."281
This inadequate education was reflected, the
plaintiffs alleged, in the lower test scores and higher nongraduation rates of Minneapolis students as compared with state
Minneapolis are approximately 70 percent children of color and approximately 70
percent low-income.").
275. NAACP Compl., supra note 269, at 13, 17-19; see also Xiong Compl., supra
note 269, at 2, 18-20 (alleging per se violations of the education and equal
protection clauses of the Minnesota Constitution).
276. MINN. CONST. art. XIII, § 1.
277. See Skeen v. State, 505 N.W.2d 299, 313 (Minn. 1993) (holding that
education is a fundamental right under the Minnesota constitution both because of
its importance to the state and the language of the education clause); see also
NAACP Compl., supra note 269, at 17 (noting the fundamental right to an
adequate education under the education clause of the Minnesota constitution).
278. See Michael Heise, State Constitutions, School Finance Litigation, and the
'Third Wave": From Equity to Adequacy, 68 TEMP. L. REV. 1151 (1995). The choice
of plaintiffs to proceed in state court on adequacy theories is discussed; the article
particularly focuses on She/f v. O'Neill, 678 A.2d 1267 (Conn. 1996).
279. See Shef, 678 A.2d 1267.
280. Id. at 1270-71.
281. NAACP Compl., supra note 269, at 13; see also Xiong Compl., supra note
269, at 11-12, 19.
Law and Inequality
[Vol. 24:269
suburban students. 282 The NAACP complaint also alleged that the
segregation of the Minneapolis Public Schools had a negative
effect on its students' chances for employment and higher
28 3
education.
The NAACP plaintiffs charged that Minneapolis's failure to
enforce current state rules on capping minority enrollment in its
schools, among other actions, showed that the state had not taken
schools.2 84
to desegregate Minneapolis
action
effective
Additionally, they claimed that the state reinforced racial and
economic inequality through its school construction policies and
failure to promote integrated housing. 285 The plaintiffs asked the
court to order the state to end its segregative practices and provide
the children of Minneapolis's public schools with "an adequate and
286
desegregated education."
The defendants claimed that Minnesota's education clause
created only a limited duty to establish schools, 287 and that there
was no equal protection violation because no intentional acts were
alleged. 28 8 The district court judge, after hearing arguments in
April 1996, ordered several defendants dismissed but allowed the
case to go forward. 289 The district court also determined that the
issues raised in the case were sufficiently novel and important
enough to be decided directly by the Minnesota Supreme Court. 90
The higher court refused to hear the certified questions, and the
282. See NAACP Compl., supra note 269, at 14; see also Xiong Compl., supra
note 269, at 13-14.
283. See NAACP Compl., supra note 269, at 14; see also Xiong Compl., supra
note 269, at 14.
284. See NAACP Compl., supra note 269, at 15; see also Xiong Compl., supra
note 269, at 15-16.
285. NAACP Compl., supra note 269, at 16; see also Xiong Compl., supra note
269, at 16-17 (noting, as an example, the failure of Metropolitan Council to ensure
that the suburb of Maple Grove fulfilled its fair housing obligations).
286. NAACP Compl., supra note 269, at 19; Xiong Compl., supra note 269, at 21.
287. See Defendants' Amended Notice of Motion and Motion to Dismiss
Plaintiffs' Complaint at 1-2, Minneapolis Branch of the NAACP v. State, No. 9514800 (Minn. Dist. Ct. Feb. 27, 1996); Memorandum of Law in Support of
Defendants' Motion to Dismiss at 4, 10-19, Minneapolis Branch of the NAACP v.
State, No. 95-14800 (Minn. Dist. Ct. Feb. 27, 1996) [hereinafter Mere. of Law in
Supp. of Defs.'Mot. to Dismiss].
288. See Men. of Law in Supp. of Defs.'Mot. to Dismiss, supra note 287, at 2123.
289. See Minneapolis Branch of the NAACP v. State, No. 95-14800, slip op. at
A24 (Minn. Dist. Ct. June 26, 1996) (order granting defendants' motion to dismiss
in part and denying plaintiffs' motion for summary judgment).
290. Minneapolis Branch of the NAACP v. State, No. 95-14800 (Minn. Dist. Ct.
Nov. 21, 1996) (order for certification of questions on appeal).
2006]
DESEGREGATION SETTLEMENT
defendants subsequently sought unsuccessfully to have the case
29 1
dismissed on jurisdictional grounds.
The effort of the NAACP to join the Metropolitan Council for
a combined schools and housing remedy was defeated on res
judicata grounds because of the consent decree in the housing
discrimination case Hollman v. Cisneros. 292
This was an
important loss in the NAACP case because of the remedial power
of the Metropolitan Council to coordinate affordable housing and
2 93
school desegregation.
Not to be confused with the 1995 filing of the NAACP case, a
later suit, Xiong v. State, was filed in 1998,294 and contained
virtually identical claims to the NAACP case. Dan Shulman, the
attorney for the NAACP in the original lawsuit, noted that the
new case contained an additional due process claim and could
possibly help move the state toward a settlement, though
settlement was not the reason Xiong was filed. 295 The Hennepin
County District Court later consolidated both cases for purposes of
trial. 296
On the verge of proceeding to trial, the attorneys for the
Minneapolis NAACP felt that settlement best served the interests
of the children in Minneapolis and would provide the best
remedy. 297 A settlement that precluded extensive litigation and
provided a pilot program for Minneapolis children would at least
291. Minneapolis Branch of the NAACP v. State, No. 95-14800, slip op. at 1-2
(Minn. Dist. Ct. July 21, 1997) (order denying motion for judgment on the
pleadings).
292. See NAACP v. Met. Council, 125 F.3d. 1171, 1175 (8th Cir. 1997), vacated,
522 U.S. 1145 (1998). Hollman was a class action challenging the concentration of
public housing in certain neighborhoods in Minneapolis. Id. at 1172.
293. See Myron Orfield, Land Use and Housing Policies to Reduce Concentrated
Poverty and Racial Segregation, FORDHAM URB. L.J. (forthcoming 2006)
(manuscript at 27, on file with author).
294. See Xiong Compl., supra note 269.
295. See Debra O'Connor, Parents File Lawsuit Over Minneapolis Schools,
PIONEER PRESS (St. Paul), Feb. 24, 1998, at 2B.
296. See Settlement Agreement at 1, Case Nos. 95-14800, 98-2816 (Minn. Dist.
Ct. May 8, 2000) ('On October 16, 1998, the Court ordered that the actions be
consolidated for purposes of trial only.") (on file with author) [hereinafter
Settlement Agreement].
297. See Dan Shulman, Address at the Institute on Race and Poverty Race and
Regionalism
Conference,
(May
7,
2005),
http://www.kirwaninstitute.org/news/RnR2005/Session6_DanShulman.m3u (noting
that while the Plaintiffs recognized the possibility that the suit might lead to
mediation, there were other reasons to bring suit or to settle).
298. Id.
Law and Inequality
[Vol. 24:269
provide support for a future, more extensive effort.29s In early
1999, the parties began to work on the settlement, first by
exchanging proposals and then by mediated settlement
negotiations. 299 In 2000, before the case was to be tried, the
300
parties reached an agreement.
The settlement agreement established three key programs:
1) allow low-income Minneapolis students to attend suburban
schools; 2) give low-income Minneapolis students preferred access
to magnet schools within the MSD; and 3) increase the
accountability of the MSD to parents.3 0 1 The suburban plan set
aside 2,000 spaces over four years for Minneapolis students from
low-income families to attend suburban schools which are part of
the West Metro Education Program, a consortium of school
districts in the western metropolitan area. 302 Although the
suburban program aspect was set to expire at the end of the 200403
05 school year, it has been extended to the 2005-06 school year.
The settlement also increased access for low-income children to
existing magnet school programs and intradistrict transfers.30 4
B. CIY and ParticipantResponse to the Program
CIY works by expanding upon Minnesota's open enrollment
laws. 30 5
CIY children may transfer into suburban districts,
bringing with them a substantial portion of state aid3 06 Likewise,
because CIY children are by definition poor, they bring in more
money than a middle-class child would due to Minnesota's funding
299. Id.
300. See Settlement Agreement, supra note 296; see also KAHLENBERG, supra note
21, at 176-77 (noting that the settlement was reached in 2000 to expand upon the
existing suburban transfer program).
301. See Settlement Agreement, supra note 296, at ex. B.
302. Id. at ex. B. The initial plan included the following districts: Richfield, St.
Louis Park, Wayzata, Columbia Heights, Edina, Hopkins, Robbinsdale, St.
Anthony/New Brighton. Id. Sometime thereafter, Eden Prairie was also added.
See West Metro Education Program, supra note 31.
303. See Shah, supra note 32, at Bl.
304. See Settlement Agreement, supra note 296, at ex. C. Minneapolis agreed to
adopt an Enhanced Choice program and an Accountability program. Id. at 2. These
are important aspects of the choice plan, though they are not the primary focus of
this Article. Intra-district transfer can only achieve so much in a school district
that is overwhelmingly poor and minority. Thus, the lion's share of the discussion
is reserved for the suburban transfer program, which is at the same time the most
controversial and promising aspect of CIY.
305. See PALMER, supra note 33, at i-ii.
306. Id.
20061
DESEGREGATION SETTLEMENT
schemes. 307 These features, combined with free transportation for
the children, 308 make CIY an attractive program for all sides.
Children are already permitted under state law to attend
schools outside their district, 09 but they must pay for their own
transportation to the district and compete for available spaces. 10
The suburban CIY program gives priority access to open spaces in
certain suburban districts to Minneapolis students who are
eligible for free or reduced lunch. 311 If demand for the program
outstrips availability, then residents in certain regions within
Minneapolis receive higher priority. 31 2 Suburban districts may
only refuse to accept a CIY student if there is not space available
in the program. 313 Interstate 94/394 is a north/south dividing
line, 314 and Minneapolis residents north of the freeway may have
priority in suburban districts north of the freeway, and similarly
3 15
in suburban districts south of the freeway.
At the beginning of its fifth year in the fall of 2005, 1,680
students were participating in the suburban choice component of
the program. 316 More than 3,500 had participated in the program
over its five year lifetime. 317 The majority of the participating
suburban schools had considerably fewer children of color than
Minneapolis schools. 318 In the first two years, only eight of the
sixty suburban schools had more than 35% minority enrollment. 19
The suburban schools also enrolled relatively few students who
were eligible for free or reduced price lunches. 320 A study covering
307. TIM STROM, MINN. HOUSE RESEARCH DEP'T, MINNESOTA SCHOOL FINANCE:
A GUIDE FOR LEGISLATORS 19 (Nov. 2005) ("The formula that generates
compensatory revenue is a concentration formula based on each school building's
count of students that are eligible for free or reduced price meals.").
308. See Settlement Agreement, supranote 296, at ex. B.
309. See PALMER, supra note 33, at i (noting that more than 30,000 students
participated in open enrollment in the 2002-03 year).
310. See id.
311. See id. at i-ii.
312. See id. at 1-9. The neighborhoods are roughly near-North Minneapolis,
downtown, parts of Northeast near the river, Seward, and South Minneapolis. Id.
at 19.
313. See id. at 8, 10.
314. See id. at 1 n.3.
315. See id. at 1.
316. Minneapolis Public Schools, Student Accounting Department, Choice is
Yours Enrollment (Sept. 27, 2005) (on file with author).
317. See id.
318. See PALMER, supra note 33, at 3.
319. See id.
320. See id.
Law and Inequality
[Vol. 24:269
the first three years of CIY showed 52% of the program's
participants came from two zip codes in north Minneapolis, which
had mostly racially isolated schools.3 21
By far the largest
percentage of students (37.2%) went to Robbinsdale, followed by
Richfield (14.4%).322
Both these districts were drawn to the
program in part based on their declining enrollment, and in part
based on a desire to help with a west-metro desegregation
program.
The earliest years of CIY suffered from poor publicity.323 In
an evaluation of the first several years, the Minnesota Department
of Education found that of the families that were eligible and did
not utilize or apply for CIY, nine of ten did not even know that it
existed. 324 Even among families that utilized the suburban CIY
program, some did not realize they were participating in it.325
This probably demonstrates that there is an information gap for
low-income or minority families that can keep them from accessing
the program.
Moreover, the state and school districts had
difficulty making the program known to parents, as name
326
recognition was so low.
Parents chose to enroll their children in suburban school
3 27
districts as part of CIY primarily because of academic quality.
Parents of CIY participants were also more likely to give school
safety as a reason for choosing the school than parents of students
in Minneapolis schools.328 Interviews with parents of participants
3 29
in the programs showed great satisfaction with the programs.
Interest in the suburban transfer program is highest among
Black families. Before the creation of the CIY program, 56% of
suburban transfer students were White. 330 Now, nearly 46% are
321. See ASPEN Assocs., MINNESOTA VOLUNTARY PUBLIC SCHOOL CHOICE 20032004 14 (2004).
322. See id.
323. See PALMER, supra note 33, at 29-30; Randy Furst, School-Choice Info
Misses Some Parents,STAR TRIB. (Minneapolis), May 27, 2001, at B1.
324. See PALMER, supra note 33, at 29 ("Only 1 in 10 parents of eligible, nonparticipating students... recognized the program by name.").
325. See id. at 30.
326. See id.
327. See id. at 40 (finding that 32.8% of parents cited academic quality as their
primary reason for enrolling their children).
328. See id. at 44 tbl.2.16.
329. See ASPEN Assocs., supra note 321, at 14 (reporting that 90% of CIY
parents would choose the same school again).
330. See id. at 13.
20061
DESEGREGATION SETTLEMENT
Black and only 37% are White. 331 Forty-seven percent of CIY
participants were previously enrolled in a Minneapolis public
school, and 7% were previously enrolled in a charter or private
3
school. 32
Parents rated the schools well on a wide variety of indicators,
including setting high standards for achievement, creating
community, and making students feel welcome. 33 Though parents
seemed pleased with the suburban schools' approach to diversity,
interviews with teachers showed that they were less comfortable
talking about racism and prejudice than parents believed and that
teachers believed students of different races did not work well
together. 334 Only 17% of CIY withdrawals in the first four years
returned to the Minneapolis Public Schools, 335 indicating perhaps
that parents were more satisfied with suburban schools than with
their previous schools. The remainder of those withdrawing may
have chosen to attend charter schools or some other non-MSD,
non-CIY school. Some anecdotal evidence also suggests that
families may be moving out of Minneapolis to relocate in the
districts where their children attend school 36 In that case, the
families would no longer be CIY enrollees, but new suburban
residents eligible for local enrollment.
There is little hard data measuring the achievement of CIY
students in relation to those students in Minneapolis schools.3 37 A
comparison of program participants in suburban schools with
students in Minneapolis schools, which did not control for other
factors, showed increases in scores for suburban choice students in
four out of five comparisons. 338
The group responsible for
releasing the first two reports on CIY and the Minnesota
Department of Education planned to release data on student
achievement in June of 2005, but as of January 2006, has not
331. See id.
332. Id. at 14.
333. See PALMER, supra note 33, at 66 tbl.3.2.
334. See id. at 67-68.
335. Minneapolis Public Schools, Student Accounting Department, Choice is
Yours Enrollment (Jun. 17, 2005) (on file with author).
336. See PALMER, supra note 33, at 18 n.13.
337. See ASPEN ASSOcS., supranote 321, at 22.
338. PALMER, supra note 33, at 86 (showing increases in year one participants in
eighth grade reading and year two participants in third grade reading, third grade
math, and fifth grade reading; showing lower scores for year one participants in
fifth grade math).
Law and Inequality
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followed through with a public release. 339
Focus groups held during the 2002-03 school year showed
that 50% of students had an easy transition into their new
schools. 340 The vast majority of students stated that they felt
welcome in their new schools.3 4 1 Students at nearly half of the
participating schools, however, reported difficulties transitioning
due to the new cultural environment or not knowing anyone at
their new school. 342 Some students reported being unfavorably
singled out in class, while others reported that teachers gave them
extra help. 343 Students often faced stereotypes held by fellow
students and, to a lesser extent, teachers. 344 When students were
asked what advice they would give to the program's
administrators, the most common suggestion was to improve
345
transportation.
Although students were not asked about their overall
satisfaction with the program, a third of the respondents replied to
that effect on their own. 346 Overall, an analysis of the students'
responses in focus groups found that the students utilizing CIY
interpreted their experiences in their new schools "quite
347
positively."
C. Minnesota'sDesegregationRules
Contemporaneous with the CIY settlement and the end of the
NAACP litigation, the Minnesota Department of Education
enacted administrative rules to deal with segregation. Minnesota
administrative rules provide guidance for assessing racial balance
in schools and school districts. A "racially identifiable" school is
defined as one that is twenty percentage points above the district
average for that grade level in terms of minority enrollment.3 48 A
"racially isolated" school district is one where the enrollment of
minority students exceeds twenty percentage points of district339. In discussions with staff at the Minnesota Department of Education, it
appears that the student achievement data will be publicly available at some point,
but the Department indicated no plans to make a public release of the data.
340. See PALMER, supra note 33, at 96.
341. See id. at 98.
342. See id. at 97.
343. See id. at 98-99.
344. See id. at 99-100.
345. See id. at 107.
346. See id. at 109.
347. Id.
348. See MINN. R. 3535.0110, subp. 6 (2005)..
2006]
DESEGREGATION SETTLEMENT
wide enrollment at any adjoining school district.3 49 Some types of
schools are specifically exempted from the effect of the rules.
These include charter schools and schools designed to "address
limited English proficiency."35 0 For segregated schools not the
3 51
All
result of intentional discrimination, a separate plan exists.
districts are required to provide the Commissioner of the
Department of Education with racial composition data each year
52
in order to determine which schools are racially isolated
The remedy for isolated school districts is similar to that for
segregated schools not the result of intentional discrimination.
After a finding that the district is isolated, the Commissioner is
required to notify the isolated district and the surrounding
districts. 353
The affected districts must then establish a
"multidistrict collaboration council" to "identify ways to offer crossdistrict opportunities to improve integration."3 54 A plan is then
55
approved, which may include incentives listed in the rules.3
Some of the incentives involve transportation aid, developing
cooperative magnet schools, creating cooperative efforts to recruit
56
minority teachers, and creating community education programs3
A plan remains in effect for four years from the time it is
357
created.
While the rules generally will not create a mandatory
integration remedy,3 58 they can increase interaction between
districts to encourage voluntary desegregation. Under the present
statute, broad authority resides in the Commissioner of the
Department of Education to "address the need for equal
educational opportunities for all students and racial balance"
through the use of administrative guidelines.3 59 Administrative
rules create voluntary remedies for districts that are segregated or
349. See id. subp. 7.
350. Id. subp. 8. Schools that are designed to address individual education
needs, special education, or alternative education are also exempted. Id.
351. See id. 3535.0160, subp. 1.
352. See id. 3535.0120, subp. 1.
353. See id. 3535.0170, subp. 1. The same exceptions exist for American Indian
concentrations. Id.
354. Id. subp. 2.
355. See id. subp. 5. The plan is required to include community outreach
preceding the plan, identification of cross-district integration issues, goals of
integration, and methods to accomplish the goals. Id. subp. 6(A).
356. See id. subp. 6(B).
357. See id. subp. 8.
358. See supra notes 353-357 and accompanying text.
359. MINN. STAT. § 124D.896 (b) (2004).
Law and Inequality
[Vol. 24:269
have segregated schools. 360 The practical effect of the rules has
been to encourage "collaboration councils" that work to support
integration initiatives between racially isolated and non-racially
isolated school districts. 36 1 Unfortunately, a recent review of this
system by the Legislative Auditor revealed that the Department of
Education is not following through with the rules by evaluating
362
district desegregation plans.
With the enactment of the rules in 1999, seven school
63
districts in the metro area were found to be racially isolated.
Twenty-six districts
were within the auspices
of the
364
administrative rule requiring multidistrict collaboration.
The
West Metro Education Program, an administrator of CIY, is one
such example of this.3 65 Another is the Northwest Suburban
Integration School District, which was created specifically to
address the identification of Brooklyn Center and Osseo school
districts as racially isolated following the enactment of the 1999
366
rules.
IV. The Leading Edges of Integration Today
The increasing school segregation witnessed in inner-ring
suburbs in the Twin Cities mirrors the pattern of segregation that
occurred in the central cities a generation ago.3 67 Legal challenges
to these patterns are the new frontier of civil rights in Brown-like
principles of integration.
The inner-ring suburbs are arguably seeing the same types of
boundary adjustments and indifference to segregation that
produced the lawsuit in Booker.368 Resegregation in the early
1990s, after decades of fighting to produce equality, has brought
schools throughout the country back to the level of segregation
existing early before the Supreme Court's first busing decision in
360. See MINN. R. 3535.0170.
361. See id. subp. 2, 3.
362. MINN. OFFICE OF THE LEGISLATIVE AUDITOR, supra note 251, at 28.
363. See In re Proposed Adoption of Rules Relating to Desegregation, Case No. 91300-10448-1,
56 (State of Minn., Office of Admin. Hearings Mar. 19, 1999),
http://www.oah.state.mn.us/aljBase/130010448.rr.htm.
364. See id.
365. See West Metro Education Program, supra note 31.
366. See
Northwest
Suburban
Integration
School
District,
http://www.nws.kl2.mn.us/background.html (last visited Aug. 5, 2005).
367. See supra notes 232-240 and accompanying text (Osseo and Bloomington
discussion).
368. See supra Part II.E.
2006]
DESEGREGATION SETTLEMENT
1971.369 Moreover, remedies that rely exclusively on funding have
failed to equalize opportunity and achievement. 3 70 Indeed, as the
segregated urban school districts receive greater and greater
funding per pupil, we have an education system that is "separate
371
and more than equal."
The recent half-century anniversaries of the Brown decisions
have produced much discussion and more than a few symposia
trying to answer the question of what exactly Brown
accomplished. 372 First, Southern schools were radically altered
373
when de jure segregation was struck down in Brown.
Conversely, Northern schools were faced with a more fragmented
system of government that permitted Whites to flee to suburban
Thus, Northern schools might have also faced
enclaves. 374
substantial integration were it not for the Milliken decision.37 5
Brown accomplished much, but since the early 1990s institutions
have faced the threat of resegregation in previously integrated
schools.3 7 6 This threat is becoming more and more prevalent in
suburbs, where school boundaries are transforming residential
segregation into segregation in public schools.3 77 If this kind of
drastic resegregation and socioeconomic concentration can happen
in a region as wealthy and as White as the Twin Cities, it can
conceivably happen anywhere in the country. The principles of
integration must be brought to bear on the problem of fragmented
government that permits these separate school systems to exist in
metropolitan regions.
If federal desegregative lawsuits were the vehicle for bringing
369. Gary Orfield, The Growth of Segregation, in DISMANTLING DESEGREGATION,
supra note 9, at 53, 54-55.
370. See supra notes 189-191 and accompanying text.
371. Susan Eaton et al., Still Separate, Still Unequal: The Limits of Milliken II's
Monetary Compensation to Segregated Schools, in DISMANTLING DESEGREGATION,
supra note 9, at 143-178.
372. See, e.g., 24 LAW & INEQ. 1 (2006).
373. See Gary Orfield, Turning Back to Segregation, in DISMANTLING
DESEGREGATION, supra note 9, at 1, 7-8.
374. See id. at 10-11.
375. See Ford, supra note 8, at 1309-14. Ford refers to Milliken v. Bradley, 418
U.S. 717 (1974). Northern schools are often in smaller districts, more closely
aligned with municipal boundaries, while Southern school districts are more closely
aligned with county boundaries, permitting the type of metro-wide relief that is
necessary for effective integration. See AMY STUART WELLS & ROBERT CRAIN,
STEPPING OVER THE COLOR LINE 31-32 (1997).
376. See Orfield, supra note 373, at 19-22.
377. See Gary Orfield, Segregated Housing and School Resegregation, in
DISMANTLING DESEGREGATION, supra note 9, at 291-92.
Law and Inequality
[Vol. 24:269
the system of de jure segregation to a halt, then the newer state
constitutional remedies are the leading edge of Brown and the
desegregation movement today, promising to end de facto
segregation. The first part of the following section discusses the
continuing validity of some of the federal case law. Next, the
article turns to the relatively new area of state constitutional
desegregation lawsuits. Beginning with Sheff and paralleled in
the Minnesota cases NAACP and Xiong, plaintiffs are avoiding the
federal courts and enforcing their state fundamental education
rights in an attempt to do away with de facto segregation in our
nation's schools. In Minnesota, the result of state litigation has
been a promising choice program that could be an effective
element of a more comprehensive desegregation plan.
However, while federal desegregation remedies still exist for
new constitutional violations, pursuing lawsuits against each
suburban school district would be both difficult and ultimately
unproductive. Without a metro-wide plan to desegregate the
entire region, individual suburban districts would simply
experience White flight as Minneapolis did. On the other hand, if
a metropolitan-wide remedy does not become available, plaintiffs
may be forced to sue for the temporary relief that district-bydistrict remedies can provide.
A. The Decline of Federal Legal Remedies for Desegregation
1. The "Dismantling" of Desegregation
Since the 1990s, academics have documented the "quiet
reversal" of the school integration created by Brown and its
progeny. 378 The Supreme Court, since the time of Milliken, treated
integration, or "unitary" status, as a one-time goal that, once
reached, cured the harms segregation had wrought in the past 79
School districts were free to dismantle their desegregation
programs and return to neighborhood schools.38 0
Minneapolis returned to neighborhood schools promptly after
378. E.g., DISMANTLING DESEGREGATION, supra note 9.
379. See Milliken, 418 U.S. 717. In later cases, on a showing of "unitary" (i.e.
non-segregated) status and "[operation] in compliance with the commands of the
Equal Protection Clause," the Court permitted a school district to dismantle its
integrative programs. Bd. of Educ. v. Dowell, 498 U.S. 237, 247 (1991); see also
Freeman v. Pitts, 503 U.S. 467, 499 (1992) (giving district courts authority to
return oversight to school districts even when full compliance is not yet reached).
380. See Milliken, 418 U.S. 717.
2006]
DESEGREGATION SETTLEMENT
Sharon Sayles Belton, a Black mayor, was elected to office and
convinced the School Board to do so. 3 81 Minneapolis now features
an open enrollment policy and a limited intradistrict transfer
program as options for inner-city children,382 but most schools in
83
the district are undeniably segregated by race and income
Milliken is a bad precedent for an integrated society for
several reasons, including its presaging of the dismantling of
federal desegregation law. 38 4 Most importantly, it remains the
worst precedent for integration because it bars metropolitan
desegregation under the federal constitution.3 85
Without a
violation that somehow crosses municipal boundaries, federal
courts are without power to order interdistrict remedies-arguably
the most effective remedies for creating stable educational
integration and for boosting
student achievement and
opportunity. 38 6 Municipal and school district boundaries are
creations of state law; 38 7 limiting remedies to these boundaries
may make the efforts futile because the state enjoys broad
discretion to control the pace of integration.
It is clear that federal legal remedies are currently
inadequate to address de facto segregation. The Minnesota Rules
dealing with desegregation coincide precisely with the federal case
law of the past fifteen years permitting a return to segregated
schools. Minnesota law permits separate schooling for Whites and
minorities as long as the state is not foolish enough to advertise its
intent to segregate its schools.
Gary Orfield discusses this tendency in his book, Dismantling
Desegregation, noting that the United States Supreme Court can
have a normalizing and legitimizing effect on government
actions. 388 When, for example, the Supreme Court approved the
381.
382.
383.
384.
385.
See Russell, supra note 133.
See supra notes 301-304 and accompanying text.
See supra Part I.E.
See supra notes 379-380 and accompanying text.
See Milliken, 418 U.S. at 745.
386. See, e.g., ROBERT CRAIN ET AL., DESEGREGATION PLANS THAT RAISE BLACK
ACHIEVEMENT: A REVIEW OF THE RESEARCH 28-31 (1982).
387. See, e.g., Richard Briffault, Our Localism, 90 COLUM. L. REV. 1, 30 (1990)
(explaining local government's powerlessness against state intrusion). Briffault
goes on to show that in the area of school finance and land use, the local
government gains some real legal authority, although it is still ultimately subject to
state supreme control. See id. at 24-39, 40-58.
388. Gary Orfield, Plessy Parallels: Back to Traditional Assumptions, in
DISMANTLING DESEGREGATION, supra note 9, at 23, 26-27.
Law and Inequality
[Vol. 24:269
"separate but equal" doctrine in Plessy v. Ferguson,389 it accepted
the idea that racial segregation is natural and unsolvable. Orfield
draws this parallel a hundred years later, noting that the Court in
Dowell and Milliken claimed natural boundaries and local
preferences make true integration impossible. 390 Likewise with
the desegregation rules in Minnesota: the law is only concerned
with obvious and stark racism that rarely exists in reality.391
2. The Continuing Validity of Keyes
Booker clearly anticipated the Supreme Court's decision in
Keyes, relying on the district court's decision in Keyes and other
lower federal court decisions. 392 In both Booker and Keyes, de facto
segregation was labeled a product of explicit school and housing
segregation.3 93 Keyes imposes a requirement that an entire
district will be subject to court supervision if even the smallest
portion of its attendance boundaries are gerrymandered to produce
394
racial isolation in schools.
It is fascinating to examine recent boundary adjustments in
suburban Minneapolis districts under the holdings of Booker and
Keyes. Although the facts are not fully developed for this Article,
the conduct observed strongly suggests repeated federal
constitutional violations as the racially diverse suburbs set their
395
attendance boundaries.
Keyes outlined the elements of intentional segregation a
plaintiff would have to prove in a Northern desegregation case.
The court declared:
Where plaintiffs prove that the school authorities have carried
out a systematic program of segregation affecting a
substantial portion of the students, schools, teachers and
facilities within the school system, it is only common sense to
conclude that there exists a predicate for a finding of the
existence of a dual school system .... First, it is obvious that
a practice of concentrating Negroes in certain schools by
structuring attendance zones or designating "feeder" schools
on the basis of race has the reciprocal effect of keeping other
389. 163 U.S. 537, 548-50 (1896).
390. Gary Orfield, Unexpected Costs and Uncertain Gains of Dismantling
Desegregation, in DISMANTLING DESEGREGATION, supra note 9, at 73, 96.
391. See supra Part 11I.C.
392. Booker v. Special Sch. Dist. No. 1, 351 F. Supp. 799, 807-808 (D. Colo. 1972)
(citing Keyes v. Sch. Dist. No. 1, 313 F. Supp. 61, 73 (D. Colo. 1970)).
393. See supra notes 150-153, 155-174 and accompanying text.
394. See supra notes 150-153 and accompanying text.
395. See supra Part II.E.
2006]
DESEGREGATION SETTLEMENT
schools predominantly white.
Similarly the practice of
building a school... "with conscious knowledge that it would
be a segregated school" has a substantial reciprocal effect on
the racial composition of other nearby schools. So also the use
of mobile class-rooms, the drafting of student transfer policies,
the transportation of students, and the assignment of faculty
and staff on racially identifiable bases have the clear effect of
396
earmarking schools according to their racial composition.
The Court continued, stating that the effects of segregated schools
397
led directly to residential segregation.
39
In Washington v. Davis 8 and Massachusetts v. Feeney,399 the
Supreme Court clarified the need to prove intent to establish a
violation of the equal protection clause and the 1964 Civil Rights
Act. 400 In light of these cases, the Supreme Court reaffirmed the
Keyes standard of establishing segregative intent in a school
desegregation case in two separate cases. 401 In both cases, the
court found that segregative boundary decisions that have a
"foreseeable and anticipated disparate impact are relevant
evidence to prove the ultimate fact, forbidden purpose [segregative
intent] .402
396. Keyes v. Sch. Dist. No. 1, 413 U.S. 189, 201-202 (1973) (citation omitted)
(quoting Keyes v. Sch. Dist. No. 1, 303 F. Supp. 279, 285 (D. Colo. 1973)) (emphasis
added).
397. Id. at 202.
398. 426 U.S. 229 (1976).
399. 442 U.S. 256 (1979).
400. See id. at 274-75. See generally Washington, 426 U.S. 229.
401. See Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406 (1977) (Dayton I);
Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526 (1979) (Dayton 1); Columbus Bd. of
Educ. v. Penick, 443 U.S. 449 (1979).
402. Columbus, 443 U.S. at 464. The court specifically declared that "adherence
to a particular policy or practice 'with full knowledge of the predictable effects of
such adherence upon racial balance in a school system is one factor among many
others."' Id. at 465 (quoting Penick v. Columbus Bd. of Educ., 429 F. Supp. 229, 255
(S.D. Ohio 1977)). In Dayton II, the Court found the following: 1) segregated
schools, 2) segregated faculty assignments, 3) optional attendance zones that
allowed Whites to avoid integrated schools, and 4) school construction policies that
enhanced segregation were sufficient to establish a presumption of segregative
intent and shift the burden to the defendant school district. 443 U.S. at 541. This
burden could only be satisfied with evidence to support a finding that the
segregative actions "were not taken in effectuation of a policy to create or maintain
segregation." Id. at 535 (citing Keyes, 413 U.S. at 214). Similarly, in Columbus the
Court found that 1) segregated schools 2) segregated faculty assignments, 3)
discontiguous attendance areas, and 4) segregative boundary changes established
such intent. 443 U.S. at 461-63. The Court in Columbus confirmed the lower courts
which found that choosing between two boundary plans, one which was integrative
and one which was segregative, could be used as evidence of segregative intent. Id.
at 462 n.10 (citing Penick, 429 F. Supp. at 248-50) ("The Board chose the
segregative option, and the district court was unpersuaded that it had any
Law and Inequality
[Vol. 24:269
Subsequent case law decided under Keyes, Dayton, and
Columbus indicates that segregative intent will be presumed if a
number of factors are present; once these factors are established,
they warrant "an inference and a finding . . . that segregative
actions 'were not taken in effectuation of a policy to create or
maintain segregation or were not among the factors . . . causing
the existing condition of segregation in these schools."'403 The
relevant factors are:
[1)] Discriminatory drawing or altering of an attendance zone.
[2)] Discriminatory location of new schools...
[3)] Discriminatory expansion of existing schools (such as
enlarging minority schools rather than transferring minority
students to nearby white schools with available space)...
[4)] School board's failure to relieve overcrowding at white
schools by transferring white students to nearby minority
schools with available space...
[5)] Discriminatory hiring of teachers and administrators...
[6)] Discriminatory promotion of teachers and administrators.
[7)] School board's perpetuation or exacerbation of school
segregation by strict adherence to neighborhood school policy
after a segregated school system had been developed...
[8)] School board's failure to adopt a proposed integration plan
or implement previously adopted plan...
[9)] School board's adoption of open enrollment or free transfer
policies with the effect of allowing whites to transfer out of
black schools without producing a significant movement of
blacks to white schools or whites to black schools...
[10)] School segregation de facto rather than the result of state
404
action.
It
appears from Keyes, Dayton, and Columbus that
foreseeable consequences of segregation, in addition to the
legitimate educational reasons for doing so."). In footnote 11 the Court noted: "The
District Court found that, of the 103 schools built by the Board between 1950 and
1975, 87 opened with racially identifiable student bodies and 71 remained that way
at the time of trial.
This result was reasonably foreseeable under the
circumstances .... " Id. at 462 n.11. Interestingly, and relevant to modern cases,
the Court also noted that "[local community and civil rights groups, [a blue-ribbon
University commission] . . , 'and officials of the Ohio State Board of Education all
called attention to the problem of segregation and made curative recommendations'
...[but the] Boardrs] response was 'minimal."' Id. at 463 n.12 (citation omitted)
(quoting Penick, 429 F. Supp. At 255).
403. Dayton II, 443 U.S. at 535 (quoting Keyes, 413 U.S. at 214).
404. See GARY ORFIELD, MUST WE BUS? 20-21(1978).
DESEGREGATION SETTLEMENT
20061
presence of several of the above factors, establish a presumption of
segregative intent, which must be rebutted by the defendant
school district. 405 Unless a school board could then convince the
court that the segregative action was isolated in its effect and that
it had never been influenced by racial considerations, the
presumption is established. The shifting of the burden, in the vast
majority of desegregation cases, has been determinative.4 0 6
B. State ConstitutionalRemedies: The Promise of Sheff v.
O'Neil
An abolition of legal formalities in segregation-refusing to
pretend that segregation in the housing market and in public
schooling are independent results of personal preference-is a
worthwhile goal but not likely a winning argument in court.
Federal legal remedies remain discouraging for metro-wide relief,
but some relatively recent state constitutional cases have become
the new basis for legal attacks on segregation.
Litigants have turned to state constitutional law to argue
that school officials must act to prevent segregation. A certain
degree of wariness about legal remedies to enforce integration is
warranted, but plaintiffs' groups should not submit to the kind of
pessimism that allows school officials to make their decisions in a
vacuum. State constitutions are a sound basis for recent prointegration decisions and settlements in both Connecticut and
Minnesota.
The Connecticut case Sheff and the Minnesota case Xiong
provide examples of integrative lawsuits at work today. Faced
with a choice between settling for increased resources and
proceeding to sue to desegregate their school districts, these
plaintiffs rejected the sidetrack strategy of increasing funding to
While the Sheff court stopped short of
segregated schools.
ordering a remedy, its sweeping opinion declaring segregated
schooling to be an inherently inadequate education provides the
best example of what desegregation litigation can achieve if
vigorously pursued.
The Supreme Court of Connecticut first found a right to equal
education for every child in the 1970s in Horton v. Meskill. 40 7 Like
405. See
406. See
407. 376
elementary
id. at 16-19.
id. at 23-24.
in Connecticut,
A.2d 359, 374 (Conn. 1977) ("We conclude that ...
and secondary education is a fundamental right, that pupils in the
Law and Inequality
[Vol. 24:269
many states, Connecticut's constitution requires the state to
provide a free education to all children within the state a0 Since
Horton, this principle has been interpreted as a requirement to
provide adequate funding and to equalize the funding disparities
that appeared between school districts with high property wealth
and poorer inner-city districts. 40 9 Horton, however, declined to
address race as a possible avenue for equalizing education.4 10 The
She/f litigation sought to remedy that oversight.
As in Brown, the Sheff plaintiffs attempted to prove that a
segregated education is an inherently unequal education for all
children, White or minority. 411 Based in part on the same claims
pursued in Horton,4 12 and in part on Justice Douglas's keen insight
into the nature of de facto segregation, 413 the plaintiffs argued that
no intent need be shown for a constitutional violation to occur; de
facto segregated schooling violated the state's equal protection
clause, regardless of whether it resulted from housing
discrimination, attendance boundary gerrymandering, or the
414
spatial separation of wealth and poverty.
The Supreme Court of Connecticut considered four claims,
the first of which, and the prevailing claim, was a "garden variety
Brown" claim.4 15 The second claim accused the defendants of
maintaining and perpetuating racial and social segregation in
Hartford in a discriminatory manner, thereby violating both equal
protection guarantees and the state education clause. 416 This
second claim recognizes that, while intentional state action may
not have created segregated schools, state knowledge of de facto
segregation and the continued maintenance of such a school
public schools are entitled to the equal enjoyment of that right ....
").
408. CONN. CONST. art VIII, § 1 ("There shall always be free public elementary
and secondary schools in the state. The general assembly shall implement this
principle by appropriate legislation.").
409. See Lauren Wetzler, Buying Equality: How School Finance Reform and
Desegregation Came to Compete in Connecticut, 22 YALE L. & POL'Y REV. 481, 48285 (2004).
410. See id. at 487-88 (explaining the plaintiffs' desire not to "mix up race" in the
lawsuit).
411. See id. at 496.
412. See id.
413. Keyes v. Sch. Dist. No. 1, 413 U.S. 189, 214-17 (1973) (Douglas, J.,
concurring).
414. Wetzler, supra note 409, at 496-97 (discussing the She/f plaintiffs' claims
and arguments).
415. Id. at 498.
416. Sheffv. 0' Neill, 678 A.2d 1267, 1271 (Conn. 1996).
2006]
DESEGREGATION SETTLEMENT
329
system remains unconstitutional, particularly if the district has
4 17
used a neighborhood schooling plan.
The third claim, some have noted, resembled a school finance
claim. 418
By comparison to neighboring school districts,
Connecticut maintained the Hartford district in such poor
condition so as to disadvantage the children residing there, again
in violation of equal protection guarantees and the state education
clause. 41 9 The fourth claim is not usually discussed and is not
relied upon here.
Connecticut attempted to defend the case on appeal based on
a state action theory that it won at trial and with which the
Supreme Court of Connecticut promptly disagreed. 420 Proof that
the state acted to segregate schooling was unnecessary, the court
stated, because Connecticut law "imposes an affirmative
constitutional obligation on the legislature to provide a
substantially equal educational opportunity for all public
schoolchildren ....- 421 Principles of state action and proof of
discriminatory intent which would have been fatal to the She/f
claims if brought in federal court provided no defense in state
court precisely because the plaintiffs sued under the state
422
constitution.
The court found that the fundamental right to an education,
established in Horton,423 was denied to inner-city children in
Hartford because of the extreme racial segregation, thereby
violating the state's equal protection clause.424 The court ordered
the state to fix the problem and provide Connecticut's inner-city
children with an adequate education. 425 The court found that,
since the duty to provide an adequate education is an affirmative
417. See id. at 1287-88.
418. See Wetzler, supra note 409, at 497.
419. See Sheff, 678 A.2d at 1271-72.
420. See id. at 1277-78.
421. Id. at 1280.
422. Id. (noting that the state, not federal, constitution obviates need for proof of
discriminatory intent).
423. See id. at 1286 ('"[In Connecticut the right to education is so basic and
fundamental that any infringement of that right must be strictly scrutinized."'
(quoting Horton v. Meskill, 376 A.2d 359 (Conn. 1977))).
424. See id. at 1287. The three-step test from Horton was used to show (a) a
more than de rninirnis disparity in educational disadvantage, (b) a shifting of the
burden to the state to prove that the disparities are legitimate objectives, and a
failure to hold that burden, and (c) if proving the burden, the continuing disparities
still may not be so great as to be unconstitutional. See id.
425. See id. at 1290-91.
330
Law and Inequality
[Vol. 24:269
obligation, the state action doctrine that bars most federal
desegregation litigation would not bar the claims asserted in
Sheff.426
An important and sometimes overlooked aspect of Sheff is the
fact that the court ordered the state to act, as opposed to the
traditional "command and control" model utilized by the federal
427
courts in the heyday of desegregation.
The fundamental right to an education found in Horton and
used in Sheff is precisely the right that federal courts denied to
plaintiffs in San Antonio Independent School District v.
Rodriguez. 428 It provides the best hook on which to base a Brownstyle desegregation claim and is perhaps more appropriate than a
lawsuit brought in federal court, as state governments are best
equipped to deal with their own schools. While Keyes remains
good law and potentially provides a valuable claim in federal
litigation, She/f obliterates the distinction between intentional
state action to segregate schools and the de facto segregation that
already exists in housing and schooling. A Sheff-like result also
requires the input of both parties to reach enumerated goals and
acquires the legitimacy of a remedy crafted by consent of the
democratically elected legislature.
Any lawsuit brought to
desegregate a school district should be tailored in such a way as to
take advantage of the theories in Sheff in the hope that it will
convince more courts to take a hard look at de facto segregation.
C. Adequacy Through Funding:An InadequateRemedy
Some have commented that desegregation rarely fails
because it has been tried and found wanting; more often, however,
429
"desegregation has been ... found difficult and not tried at all."
Such is not the case with strategies to increase school funding.
School finance litigation has touched many states-almost all of
426. Id. at 1280. The court noted:
The fact that the legislature did not affirmatively create or intend to create
the conditions that have led to the racial and ethnic isolation in the
Hartford public school system does not, in and of itself, relieve the
defendants of their affirmative obligation to provide the plaintiffs with a
more effective remedy for their constitutional grievances.
Id.
427. See Charles F. Sabel & William F. Simon, Destablization Rights: How
Public Law Litigation Succeeds, 117 HARV. L. REV. 1015, 1024 (2004) (explaining
"vast provinces of administration" of federal oversight in desegregation cases).
428. 411 U.S. 1, 35 (1972).
429. Liu & Taylor, supra note 114, at 2.
2006]
DESEGREGATION SETTLEMENT
them-and finance systems have been found unconstitutional in at
43 1
least twenty-six states. 430 After failure in the federal courts,
and on a suggestion of then-Supreme Court Justice William
Brennan, 432 plaintiffs' lawyers went to state courts to pursue
justice in equalizing education finance. They have achieved some
notable successes. 433 In a period of twenty years, from 1972 to
1992, court-ordered finance reform provided the hammer that
legislation could not, reducing inequities in spending by 16% to
38%. 434 In the early 1970s, states covered 40% of the cost of
435
education; today, that figure is closer to 60%.
Increased resources to inner-city schools have generally not
translated into improved educational outcomes 36
Inner-city
Minneapolis has many schools of concentrated poverty, some of the
neediest children in the country, and students that speak over
seventy different languages, 437 producing the most difficult-toeducate district in the state. In 2005, the average student in
Minnesota generated $8,516 for his or her school 38 The large,
inner-city district of Minneapolis now receives about $3,000 more
430. See
Campaign
for
Fiscal
Equity,
State-by-State,
http://www.schoolfunding.info/states/state-by-state.php3
(last visited Nov. 15,
2005). Recently, the Kansas Supreme Court ordered the Kansas legislature to
double the amount it planned to spend on its schools to provide adequate funding.
See Gretchen Ruethling, Court Orders More School Funding,N.Y. TIMES, June 4,
2005, at A12.
431. See, e.g., Rodriguez, 411 U.S. 1.
432. William Brennan, State Constitutions and the Protection of Individual
Rights, 90 HARV. L. REV. 489, 491 (1977) ("State constitutions ... are a font of
individual liberties, their protections often extending beyond those required by the
Supreme Court's interpretation of federal law.").
433. See
Access,
Litigation
Overview,
http://www.schoolfunding.info/litigation/litigation.php3 (last visited Sept. 11, 2005).
Forty-five states have seen litigation, and twenty-nine have rendered decisions in
contested cases. Id.
434. See Melissa C. Carr & Susan H. Fuhrman, The Politics of School Financein
the 1990s, in EQUITY AND ADEQUACY IN EDUCATION FINANCE: ISSUES AND
PERSPECTIVES 136, 149 (Helen Ladd et al. eds., 1999).
435. Id. at 143.
436. Molly McUsic notes that socioeconomic integration would be more effective
than increased funding in improving the educational attainment of poor, minority
children. See Molly S. McUsic, The Future of Brown v. Board of Education:
Economic Integration of the Public Schools, 117 HARv. L. REV. 1334, 1353-56 (2004)
(noting that increased funding has not succeeded in providing poor students with
an "equal education" while class integration has produced positive results).
437. See CITY OF MINNEAPOLIS, MINNEAPOLIS EMPOWERMENT ZONE APPLICATION
8, availableat http://www.ci.minneapolis.mn.us/ez/docs/ez-ch2.pdf.
438. Minn. Dep't of Educ., School Report Card: Minneapolis: Report to
Taxpayers, supra note 191.
Law and Inequality
[Vol. 24:269
per pupil than the state average, or about $11,393 per student.4 39
These figures include costs for non-General Education revenue,
440
such as special education and building expenditures.
Some schools within the MSD spend much more than even
the Minneapolis per pupil average and invariably these are
racially isolated schools of concentrated poverty. For example,
Barton Elementary is integrated (47% minority), has a lower than
average free lunch ratio, and receives about $9,101 per pupil, less
than the Minneapolis average. 441 On the other hand, North Star
elementary is segregated (97% minority) and more than 96% of its
students receive free or reduced lunch; the school receives more
than $13,000 per pupil.4 42 These statistics are in some respects
truisms because state financing schemes direct increased funding
4 43
to schools with high proportions of poor students.
It is clear that increased funding cannot by itself address the
problems that schools of concentrated poverty are creating in
Minneapolis. Scholars have long known that educating children
from low-income families is different and more difficult than
educating middle-income children. 444 Because funding does not
address the root problem-broken homes, parents working two
jobs, poor health, and oppositional culture-it cannot effectively
increase poor students' educational outcomes. 445 This is not to say
that low-income children cannot be adequately educated; lowincome children can be most effectively educated in schools that
439. Id.
440. Id.
441. Minn. Dep't of Educ., School Report Card: Barton Open Elementary,
http://education.state.mn.us/ReportCard2005/loadFinanceAction.do?SCHOOLNU
M=106&DISTRICTNUM=0001&DISTRICTTYPE=03
(last visited Sept. 10,
2005).
442. Minn. Dep't of Educ., School Report Card: North Star Elementary,
http://education.state.mn.us/ReportCard2005/loadFinanceAction.do?SCHOOL.NU
M=185&DISTRICTNUM=0001&DISTRICTTYPE=03
(last visited Sept. 12,
2005).
443. See supra note 307 and accompanying text.
444. See, e.g., JAMES COLEMAN, EQUALITY OF EDUCATIONAL OPPORTUNITY 22
(1966).
This phenomenon is well observed and exceeds even spending in
importance for life outcomes. See generally KAHLENBERG, supra note 21, at 26.
More and more, modern scholars call for socioeconomic integration only, as opposed
to racial and socioeconomic integration, as a way of avoiding the thorny legal
problems associated with race. See id.; see also McUsic, supra note 436. This tactic
may achieve some similar objectives, as race often corresponds with poverty, but
does not fully address the issue of racial integration by requiring interaction
between people of different races.
445. See KAHLENBERG, supra note 21, at 208-12.
2006]
DESEGREGATION SETTLEMENT
have fewer children with similar problems, peers who will
influence positive attitudes about school achievement, and
teachers who have the time and training to work with them.
Programs designed to assist low-income children should not be
based on the exception to the rule-such as the shining example of
the charter school that worked-but should be based upon creating
stable middle-class schools with students from diverse
backgrounds because these are known to work.
D. Adequacy Through Choice: Expandingand Improving on
CIY
While Minnesota already provides open enrollment, a lowincome student's freedom to choose is meaningless without the
means to get to the school.4 46 CIY improves on open enrollment by
providing transportation. 447 Another key asset of the program is
its broad bipartisan support in Minnesota, as evidenced by its
recent continuation. 448
Moreover, the force behind the
settlement-the NAACP and Xiong litigation-utilized theories
and remedy-building strategies similar to those employed in
Shef.449 The following recommendations are based on the belief
that creating middle-class schools throughout the region is in
everyone's best interest. Two key recommendations are to expand
CIY throughout the region to include more districts and to solve
the transportation problem by tying affordable housing into the
structure of the program. Part of this section also addresses the
issue of what will become of the MSD if CIY is permitted to
expand.
1. Expanding CIY to More School Districts
Encouraging student mobility will have the effect of reducing
student enrollment in the immediate future. Indeed, the number
of children that are required to move to stabilize the region's
446. PALMER, supra note 33, at i (noting that families usually provide their own
transportation under open-enrollment policy).
447. Id. at ii.
448. See Bruce Fuller et al., Policy-Making in the Dark: Illuminating the School
Choice Debate, in WHO CHOOSES? WHO LOSES?: CULTURE, INSTITUTIONS, AND THE
UNEQUAL EFFECTS OF SCHOOL CHOICE 1, 3 (Bruce Fuller et al. eds., 1996). The
authors note that school choice has always had a broad appeal, between
conservatives who wanted to improve local schools, and by "the Left as a way to
empower poor and working-class families to challenge paternalistic bureaucracies."
Id. at 3.
449. See supra note 278 and accompanying text.
Law and Inequality
[Vol. 24:269
schools seems daunting. Recent research conducted by IRP has
determined that more than 15,000 Black students would need to
leave majority Black schools to bring the seven-county metro-area
schools into some semblance of racial stability. Slightly less than
9,000 students would need to come from Minneapolis alone. 50
However, these numbers are similar in comparison to some
45 1
successful metropolitan plans.
Increasing open enrollment options for low-income children
can be a benefit for Minneapolis schools. Tough decisions about
closing neighborhood schools will certainly have to be made, but
fewer or smaller schools may help Minneapolis focus on narrowing
452
the gap with the children that remain.
Moreover, as noted above, Minneapolis expects to face severe
enrollment declines in the next five years whether or not CIY is
extended and expanded. The region experienced a similar turn of
events in the 1990s when enrollment dropped off and recently
built schools were rendered unnecessary. At the least, this
demonstrates the volatility of the enrollment in public schools and
the tough decisions about school closures that school board officials
are sometimes required to make.
However, the promise of integrated schools and an integrated
region-which is achievable in the Twin Cities-is too great a goal
not to at least encourage integration through choice. CIY should
be expanded to accommodate interest in the program.
Minneapolis will need to craft a strategy that can encourage
Minneapolis residents to enroll in MSD schools, thereby replacing
the loss of low-income minority students and creating a diverse
student body. A consolidation of schools that focuses on the
students that remain and attempts to lure the middle-class back is
Minneapolis's best hope of creating an attractive educational
climate.
450. IRP's findings are based on a ceiling of no more than 35% Black students in
any metro-area school. See Institute on Race and Poverty, Memo from IRP Staff to
Myron Orfield (Jan. 17, 2006) (unpublished memorandum, on file with author).
451. See, e.g., WELLS & CRAIN, supra note 375, at 102.
452. New York City, for example, recently started a small schools program,
attempting to reduce dropout rates and the problems of densely crowded schools.
See David Herszenhorn, In New York's Smaller Schools, 'Good Year and a Tough
Year,' N.Y. TIMES, Aug. 8, 2005, at Al. The program is still in the initial stages
with the attendant growing pains, but school boards around the country are taking
notice. Id.
20061
DESEGREGATION SETTLEMENT
2. Tying School Choice Into Affordable Housing
The largest federal housing program for new housing
developments, the Low Income Housing Tax Credit,453 operates in
some ways like CIY, in that the prime motivator is private action.
The program funds low-income housing developments by granting
a tax credit to developers who promise to maintain a certain
454
percentage of their units for low-income tenants only.
Developers sometimes build these units in areas of low
opportunity and high-minority populations, exacerbating the
problems of concentrated poverty and race.4 55 Sometimes they do
not, however, and the distribution of these units in areas of
opportunity can help moderately low-income residents access good
45 6
jobs and schools.
State housing agencies can prioritize awards of tax credits
and, as such, can direct affordable housing production into
appropriate areas. 45 7 Housing agencies can locate areas that can
sustain low-income populations, such as those with adequate
public transportation and a surplus of lower-wage jobs. The
flexibility of the state to prioritize the location of affordable
housing production, with the tax credit in particular, makes the
prioritization of housing starts aimed at CIY families possible and
productive.
IRP has also considered preliminary evidence about the
ability of well-sited housing policies to increase suburban
integration. While the research is preliminary and beyond the
scope of this paper, it shows that the number of minority children
that would have to transfer to suburban schools for racial equality
would be significantly fewer if proactive housing policies had been
pursued.458
Maintaining racially and socially integrated schooling in the
suburbs is important not only for the life opportunities of children,
but also for the maintenance of integrated housing markets.
453. See 26 U.S.C. § 42 (2004).
454. See Myron Orfield, Racial Integration and Community Revitalization:
Applying the FairHousing Act to the Low-Income Housing Tax Credit, 58 VAND. L.
REV. 1747, 1749 (2005).
455. See id.
456. See john a. powell, Opportunity-BasedHousing, 12 J. AFFORDABLE HOUS. &
COMMUNITY DEV. 188, 188-89 (2003).
457. See Orfield, supra note 454, at 1749-50.
458. Institute on Race & Poverty, Research on Housing Integration (Jan. 23,
2006) (unpublished research, on file with author).
Law and Inequality
[Vol. 24:269
Middle-class homebuyers undoubtedly make their decisions based
in part on the quality of the public schools in the area.45 9 When
every school is a middle-class school that is more or less racially
integrated, the housing market becomes homogenous and reduces
the possibility of creating White, middle-class enclaves.
3. Solving Transportation Limitations
One of the inherent problems with school choice is that
parents are only willing to send their children a certain distance to
be educated. To remedy some of the inherent transportation
problems in CIY, affordable units, as indicated above, should be
prioritized by the state housing finance agency that distributes the
credits to favor CIY participants who send their children to
outlying suburban districts. Thus, if parents like a school in the
extreme western region of Osseo or Eden Prairie-a trip that could
take up to an hour or more-and benefit from increased
opportunity in that neighborhood, they should receive priority for
housing in that area. Likewise, proposals for credits could be
given priority if they are within a certain distance of a CIY
4 60
destination school in one of the participating districts.
Disparate government agencies that work in these areasthe Minnesota Housing and Finance Agency, which oversees the
tax credit program, and the Minnesota Department of Educationshould work together on a memorandum of understanding. They
should coordinate their efforts as noted above to improve access for
low-income and minority families to opportunity-rich areas and
high-achieving schools.
4. Ensuring Racial Integration
Recent commentators have ducked the thorny issue of racial
integration in schools and instead turned to class integration,
almost as a proxy. 46 1 The best work by one of these commentators,
Richard Kahlenberg's All Together Now, argues that the current
legal structure makes racial integration impossible and that a
459. See ORFIELD, supra note 45, at 9.
460. Because of the "not-in-my-backyard" ("NIMBY") issue with low-income
housing, however, this could have the perverse incentive of turning suburban
attitudes against the CIY program, as it would be more likely to bring low-income
housing into their neighborhoods. However, the result of creating mixed-income
neighborhoods and mixed-income schools is too important to permit NIMBYism to
interfere.
461. See, e.g., McUsic, supra note 436.
20061
DESEGREGATION SETTLEMENT
62
focus on race reduces the likelihood of class integration.
Kahlenberg is correct in noting that the creation of
overwhelmingly poor, yet integrated inner-city schools would not
be the best step forward. 463 Kahlenberg also argues that racial
integration runs the risk of alienating "white working-class
voters. 464 While Kahlenberg is also correct in requiring the social
integration of schools-low-income students are proven to learn
better when surrounded by middle-income children 465-we cannot
ignore the benefits of racial diversity and the pitfalls of racial
isolation.
A similar concern with race-neutral remedies is the historical
experience in housing cases. After the New Jersey Supreme
Court's ruling in Southern Burlington County N.A.A.C.P. v.
Township of Mount Laurel,466 thousands of units of affordable
housing were built in the suburbs in an attempt to deconcentrate
poverty for the largely minority poor of New Jersey's inner
cities. 467 Unfortunately, because the program was race-neutral,
much of the suburban housing went to low-income Whites, and
minorities retained their dilapidated housing stock in the
468
impoverished inner cities.
Part of this sense of defeatism with respect to racially
integrative policies is a fixation on busing as the method of
integration. 469 But school choice, even if it grants preferences to
minorities, is not comparable to busing because White suburban
voters are not required to send their children back into the city.
The recent Supreme Court case Grutter v. Bollinger may have
breathed new life into voluntary school desegregation remedies,
allowing districts to be cognizant of race while also allowing school
470
choice to predominate.
462. See KAHLENBERG, supra note 21, at 92-96.
463. See id. at 93.
464. Id. at 96.
465. See id. at 58-61.
466. 336 A.2d 713 (N.J. 1975).
467. Naomi Bailin Wish & Stephen Eisdorfer, The Impact of Mount Laurel
Initiatives: An Analysis of the Characteristicsof Applicants and Occupants, 27
SETON HALL L. REV. 1268, 1268-76 (1996).
468. Id. (analyzing data collected by the New Jersey Affordable Housing
Management Service).
469. See KAHLENBERG, supra note 21, at 96 (referring to busing as a politically
charged issue in his reference to working-class voters).
470. Grutter v. Bollinger, 539 U.S. 306, 307 (2003) (holding that the "narrowly
tailored use of race in admissions decisions to further a compelling interest in
obtaining the educational benefits that flow from a diverse student body is not
Law and Inequality
[Vol. 24:269
Judicial review under the federal standard is strict scrutiny
when dealing with a race-conscious plan, and strict scrutiny has
4 71
often been referred to as "strict in theory, but fatal in fact."
Nevertheless, the legal landscape surrounding the use of race
consciousness and school choice to integrate schools is
encouraging.
The First Circuit recently upheld a voluntary
desegregation plan in Lynn, Massachusetts, permitting the school
district to deny voluntary transfers to maintain racial balance in
the district's schools. 472 Similarly, the Ninth Circuit upheld the
use of racial tiebreakers in Seattle's high school assignment
plan. 47 3 Finally, the Sixth Circuit also upheld a similar program
74
in Louisville that considered race as an assignment factor.
The programs in these cases share many similarities. First,
they are all the product of voluntary choices. In Seattle, students
rank their preferred schools and school administrators do their
best to take student preferences into account.475 At the same time,
race is one of several factors used to create a stably integrated
school district.476 None of the plans involved involuntarily busing
students or the use of rigid quota systems. Thus, it could be
expected that the schools would not have a uniform enrollment of
Whites and minorities, but would each fall within a range around
the district's average enrollment. 477 Importantly, however, the
range around each school's enrollment would reflect the district
average, thereby discouraging racial identification of schools.
Minnesota currently does not use similar methods to
encourage racial integration, although it has the legal means to do
so. Many of the metro-area districts belong to a collaboration
council or have their own desegregation plan. Minnesota's open
enrollment laws permit a district receiving a non-resident student
application for enrollment to deny that student admission if the
prohibited by the Equal Protection Clause.. ").
471. See, e.g., Fullilove v. Klutznick, 448 U.S. 448, 519 (1980).
472. See Comfort v. Lynn Sch. Comm., 418 F.3d 1 (lst Cir. 2005).
473. Parents Involved in Comm. Sch. v. Seattle Sch. Dist. No. 1, 426 F.3d 1162
(9th Cir. 2005).
474. McFarland v. Jefferson County Pub. Sch., 416 F.3d 513 (6th Cir. 2005) (per
curiam), affg 330 F. Supp. 2d 834 (W.D. Ky. 2004).
475. See Parents Involved in Comm. Sch., 426 F.3d at 1169-70 (noting that
Seattle Plan used four tiebreakers if student's preference resulted in
oversubscribed high schools).
476. See McFarland,330 F. Supp. 2d 834.
477. See id. at 857-58 (noting discussion of what does and does not constitute a
quota).
20061
DESEGREGATION SETTLEMENT
enrollment of that student would conflict with the district's
desegregation plan.478 Thus, through the use of desegregation
plans-and limited to students taking advantage of open
enrollment or CIY-school districts can encourage minority
enrollment in schools with few minorities, and curtail minority
enrollment in schools that are on the verge of "tipping." Likewise,
suburban school districts can discourage White flight from
Minneapolis or inner suburban districts with high-minority
schools by de-prioritizing White transfer students.
Any improvement on CIY must be cognizant of race, giving
preference to minority students in racially isolated schools, or to
White students transferring to integrated schools if they are
leaving all-White schools. Likewise, CIY-participating districts
should have the power to deny transfers to students who do not
make integrative transfers. CIY is now only required to look at
applicants by free or reduced lunch status. Instead, CIY could give
preference to minorities in racially isolated schools who intend to
transfer to suburban schools with a certain racial makeup. If CIY
children are attending schools in danger of reaching a tipping
point, then the rules should be revised to steer children away from
these schools.
Desegregation of the Minneapolis schools by
resegregating the suburban districts is not an acceptable option.
5. CIY Allows a Future for the MSD
The next logical question becomes, if CIY is fully
implemented, what happens to the Minneapolis schools and the
children left behind? In a choice regime, the children not choosing
to leave will be worse off, particularly if CIY continues to skim off
motivated, high-achieving poor students.
It is true that if CIY is expanded and fully implemented,
Minneapolis and St. Paul would likely have fewer students, would
have to close school buildings, and would lay off teachers. But this
478. See MINN. STAT. § 124D.03, subd. 4 (2005). Thus, the power to deny
nonresident student admission based on race under these circumstances is limited
to districts with approved desegregation plans. The Minnesota Rules governing
desegregation, however, do limit the ability of districts to discriminate on the basis
of race. They define segregation as the "intentional acts" of a school district that
discriminate against a student based on race, and have the effect of increasing a
concentration of protected students at a school. MINN. R. 3535.0110, subp. 9 (2005).
While this could be construed to prohibit any race "discrimination" in school
assignments, it is more likely that the text only applies to actions that are taken
with the discriminatory purpose of creating minority schools, such that Whites do
not have to interact with minorities in the district.
Law and Inequality
[Vol. 24:269
possibility must be viewed in light of the reality of what is now
happening-not an ideal alternative where segregated school
districts are stable and provide an adequate education.
CIY also must be evaluated in terms of the experience of
stably integrated regions to stop White flight and rebuild White
and middle-class enrollment in central cities and older suburbs.
In reality, the process of flight caused by racial and social
segregation and resegregation in the Minneapolis schools is
already at catastrophic levels and enrollment declines will
continue for Minneapolis. 479 Decline is attributable to both flight
to the suburbs and inner-city flight to charter schools. Moreover,
this flight is present and gaining strength in the older suburbs
with diversifying neighborhoods.
Flight to the suburbs from
Minneapolis cannot be attributed solely to White flight; it is also
flight by more than half of Blacks and Latinos to suburban
neighborhoods.480
If this process is not interrupted, Minneapolis's schools will
further deteriorate, resembling the economically and racially
segregated schools on Chicago's south side, in Cleveland, or in
Washington, DC.
Any potential short-term transitions from
offering expanded choice under CIY must be judged in light of
rapidly worsening conditions that have already left many of the
poorest children with the fewest life choices behind in the worst
schools in the region.
We can preserve status quo school
systems-or we can protect children and their rights to
educational opportunity.
Finally, in evaluating the potential effects of an expanded
school choice program, we must remember that the present
ongoing catastrophe is occurring with the poorest and most
segregated schools for which funding has not been a successful
remedy. As stated above, funding is not likely to be increased
significantly by the State because of resistance to and resentment
toward inner-city schools. High spending and poor results are
already tools for opportunistic politicians seeking to divide
individuals and communities on the basis of race by blaming the
victim. It is an age-old strategy, and it works. It works even
better when what politicians are saying is partly true, because the
beleaguered districts have no realistic strategy to make a
difference with the funding. This aid, which is forthcoming only
479. See REINHARDT, supra note 139, at 2.
480. See Orfield and Luce, supra note 52.
2006]
DESEGREGATION SETTLEMENT
because of the threat of integration, 481 will disappear if
integrationists grow complacent in a segregated society.
If CIY were fully expanded, there would be more socioeconomic balance in school enrollments, and stable racial and
social integration for all children would be possible. Minneapolis
would have fewer children and schools in the short term, but its
children, schools, and neighborhoods would do better. And as its
performance improved, so would public support for Minneapolis,
both within the city and in the region.
Most optimistically, if the experience of other cities and
regions with strong metropolitan desegregation holds true, a
smaller, stably integrated, and uniformly strong Minneapolis
school system would begin to gain students. In many of the
regional desegregation cities, places like economically booming
Raleigh, North Carolina, and Charlotte-Mecklenburg, where
metropolitan school desegregation was fully implemented, central
city neighborhoods experienced "reverse White flight. 482 Reverse
White flight also has meant reverse middle-class flight. When the
central city schools became stably integrated, middle-class White
483
families started to move back.
Minneapolis's own experience with its stably integrated
schools and majority middle-class schools in its southwest
quadrant bears this out. While the enrollment in segregated and
resegregated schools continues to plummet, stably integrated and
majority middle-class schools experience strong, constant demand.
White middle-class families with choices move into their
boundaries and participate in competitive lotteries to attend them.
White middle-class families living in neighborhoods with
segregated schools often apply and are content to have their
children bused across town to go to an opportunity-rich, racially
and socially integrated school while they continue living in the
neighborhoods they like.
In Minneapolis, White parents with high incomes and
suburban choices remain in their neighborhoods if their children
are admitted to stably integrated schools, even if it means riding a
bus. If forced to attend severely segregated neighborhood schools
that children can walk to, they leave. This is increasingly true
481. See supra note 15 and accompanying text (discussing threat of lawsuits for
increased funding).
482. Alan Finder, As Test Scores Jump, Raleigh Credits Integration by Income,
N.Y. TIMES, Sept. 25, 2005, at 1.
483. Orfield, supra note 66, at 133.
Law and Inequality
[Vol. 24:269
with middle-income non-White families as well. The experience in
Minneapolis and other places shows how more access to integrated
magnet schools, like Barton, has the possibility to create stability
in other neighborhoods across the city, even if these schools are
not "neighborhood schools."
Two further examples in southwest Minneapolis also
illustrate the rebuilding power of stably integrated schools. Lake
Harriet Upper Campus (formerly Minneapolis Audubon) and
Burroughs Elementary, because of the effect of city-only
desegregation, became majority minority and poor schools. They,
like all the other resegregating schools, were losing White and
middle-class enrollment within their attendance areas. When the
MSD resumed assigning students to neighborhood schools, these
schools' boundaries were redrawn so that their White
neighborhoods would contribute to no more than two-thirds of
their enrollment.
In 2004, growing Lake Harriet Upper, with 11% poor and 18%
non-White students, averaged state test scores that were higher
4
than all but a handful of elementary schools across the region.8
Moreover, because of the peculiarities in the state funding
formula, Lake Harriet Upper is one of the lowest-spending schools
in the metro area, compared with some schools in Minneapolis
spending much more with worse results. 48 5 These schools, while
still integrated, could soon become all White, unless-as in countywide school systems like Raleigh-their boundaries are adjusted to
allow more children of color to attend, and more integrated school
opportunities are created throughout the region.
Conclusion
The threat of suburban segregation is real and imminent. In
the past fifteen years we have witnessed the "quiet reversal" of
many of the gains from Brown v. Board of Education. These
policies and the pessimistic belief that the law has nothing to say
about contemporary segregation contribute to the widening spatial
and socioeconomic gap between Whites and minorities in the
United States. As Blacks and Latinos continue to migrate to
suburban communities, questions of segregation and resegregation
484. Minn. Dep't of Educ., supra note 22; see also Draper & Brandt, supra note
189, at B4.
485. Minn. Dep't of Educ., supra note 22. Lake Harriet spends more than the
state average per building due to high special education and building costs, but
spends less than the state average on general education funds. Id.
2006]
DESEGREGATION SETTLEMENT
become vitally important to preserving integrated and balanced
communities.
Funding remedies have proven inadequate in
mooring inner-city schools from the disastrous effects of
concentrated poverty.
With so few remedies remaining to try to bring children out
of poorly performing schools and the ill effects of urban poverty
and racial isolation, it is essential that proven remedies are
considered. Minnesota is known for being a progressive state.
Minnesota's Republicans all supported civil rights in the 1960s.
Walter Mondale was a senior author and staunch advocate of the
Fair Housing Act. Hubert Humphrey, a pro-civil rights and
integrationist mayor from Minneapolis, led the charge to include
desegregation in the 1948 Democratic platform, helping encourage
the shift of Southern votes to the Republican Party.48 6 Minnesota
was also a pioneer of charter schools as an innovative solution to
failing, high-poverty schools. That reform has shown itself to be,
in some instances, a way for parents to have input on curriculum
and educational issues. Many charter schools in Minnesota have,
however, faced significant challenges to their viability as a result
of financial mismanagement. 487 Choice programs that permit poor
children to access high-achieving schools are not a panacea, but
they are the most promising new development in recent years.
Sheff and Xiong provide examples of litigation that can work
to further the goal of desegregation. In Sheff, litigation pushed the
legislature to provide a desegregation plan and adequate funding
to encourage desegregation.
Xiong created a well-funded
voluntary plan in the Twin Cities that has benefited 2,000
children so far. Integrating communities through wise housing
policy also promises to create effective schools throughout the
metropolitan region. Plaintiffs and courts can advance the cause
of desegregation even further when they work to show that the
high level of racial and socioeconomic concentration in Minnesota
schools is not merely the result of personal preference, but is
instead the legacy of decades of discriminatory policies that have
created and maintained urban ghettos. Sheff and Xiong prove
there is no cause for pessimism and that school desegregation can
really happen.
486. MICHAEL J. KLARMAN, FROM JIM CROW TO CIVIL RIGHTS: THE SUPREME
COURT AND THE STRUGGLE FOR RACIAL EQUALITY 190 (2004).
487. See ANDERSON, supra note 204, at 35-36.
344
Law and Inequality
[Vol. 24:269
The examples and scenarios contemplated in this Article show
that once cities have stable, middle-class, and integrated schools,
This strategy is
demand and enrollment will increase.
particularly likely to make a difference in parts of the city that
Housing in
have comparatively affordable family housing.
desirable school districts is rapidly becoming beyond the reach of
many middle-class families. Segregation and resegregation limit
the choices not only of non-White families, but also of White
families who want their children prepared to excel in a multicultural world by attending stably integrated schools.
If more comprehensive options are offered to students of color
to make gains against the achievement gap, then it will become
more likely that Minneapolis will be able to overcome the image of
failed schools and rebuild its reputation. It is in the interest of all
Minnesotans to begin the process today. Those who would oppose
offering the choice of educational opportunity to the poor must
have a reason to deny choice. Otherwise, they should stand aside.
2006]
DESEGREGATION SETTLEMENT
Appendix 1:
Minneapolis Public Elementary Schools
Racial and Ethnic Distributions, 2004-2005
Source: Minnesota Department of Children Families and Learning, Data Center
346
[Vol. 24:269
Law and Inequality
Appendix 2:
Minneapolis Public Elementary Schools
Lunch Status Distributions, 2004-2005
Legend
Size = 1,000
Students
Lunch Status:
U Free or Reduced
[7 No Reduction
l Zip Codes
0 1
Miles
Source: Minnesota Department of Children Families and Learning, Data Center
2006]
DESEGREGATION SETTLEMENT
Appendix 3:
Twin Cities Public Charter School
Racial-Ethnic Distibution, 2004-2005
Note: schools are approximate locations on the map
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Law and Inequality
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DESEGREGATION SETTLEMENT
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Law and Inequality
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DESEGREGATION SETTLEMENT
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Law and Inequality
[Vol. 24:269
Appendix 8:
"Choice Is Yours" (CIY) Students From Minneapolis
to Surrounding Suburban Schools, 2005-2006
Students From
Minneapolis Zip
Codes
Students To
CIY Schools
. -. ..... .
Sources: 2005 Wide Area Transportation System,
Hopkins and St. Anthony School Districts